### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-60512

JUAN CARLOS OJEDA-CALDERON,
Petitioner
v. ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, Respondent

Petition for Review of an Order of the Board of Immigration Appeals

Before JONES, SMITH, and GARZA, Circuit Judges. EMILIO M. GARZA, Circuit Judge: Petitioner Ojeda-Calderon (“Ojeda”) petitions this court for review of the Board of Immigration Appeals (“BIA” ) decision denying his appeal from the decision of the Immigration Judge (“IJ”) that denied h is motion to reopen his in absentia deportation proceedings, rescind the i n ab s e nti a d e p o rt ati o n order, stay deportation, a nd change venue. Oje d a c o n tends the BIA abused its discretion in denying his appeal because (1) he never received the notice of his deportation hearing; (2) the notice of hearing (“NOH”) w a s s t a t u t o r ily deficient under 8 U.S.C. § 1252b(a)(3)(A) because it was written only in English and not also in Spanish; and (3) due process requires that a NOH b e in a language the a lien can understand. We DENY Ojeda’s petition for review. U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D Aug ust 8, 2013 Ly l e W . Cay ce Clerk Case: 12-60512 Document: 00512335186 Page: 1 Date Filed: 08/08/2013No. 12-60512 I Ojeda is a n a t i v e a n d citizen of Ecuador who entered the United States without i n s p e c t ion o n or about April 12, 1995. The Immigration and Naturalization Service (“IN S ” ) personally s erved Ojeda with an order to show

cause (“OSC”), written in E nglish and Spanish, charging him w ith b eing subject to deportation. The o rder n oted t h a t a hearing would be calendared and that notice would be given to the address Ojeda provided. At the hearing, the IJ ordered Ojeda released from custody on bond. Ojeda informed the IJ that u pon his release he would r e side with h i s friend Julio Alberto Ortiz in Astoria, N ew York. A N OH w as delivered to Ojeda’s attorney, Monty Roberson, informing him that a hearing was s cheduled for June 1, 1995. Ojeda did not appear and Roberson withdrew as counsel. A NOH, written in E nglish and dated June 1, 1995, w a s sent by certified mail to the Astoria, New York address Ojeda provided notifying Ojeda that a deportation hearing was scheduled for June 22, 1995, in El Paso, Texas. The return receipt was signed by Delores Ortiz. When Ojeda did not appear at the hearing on June 22, 1995, the IJ ordered him removed to Ecuador in absentia. On February 22, 2011, through counsel, Ojeda filed a motion to vacate the in absentia deportation order, to stay deportation, a nd for a change of venue so t hat he could apply for adjustment of status based on an approved i mmediate relative petition. The IJ denied the m otion. Ojeda appealed the IJ’s decision to the B IA. The Government moved for summary affirmance. The BIA dismissed the appeal, a greeing with the IJ’s holding that Ojeda could b e charged with notice of his deportation hearing. The BIA held Ojeda presented no exceptional circumstances warrantin g s u a sponte reopening. The B IA rejected Ojeda’s argument that the NOH was statutorily d e f i c ient, stating that he “ha[d] not
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cited to any statute, regulation, or c ase law which r equires a notice of hearing, sent after an OSC is issued, to be in Spanish.” The BIA h e ld that “ even if this

was required, [Ojeda] cannot establish prejudice because his whole claim is
p r e m i s e d o n the fact he did not ever receive the h earing notice.” Ojeda filed a timely petition for review. II W e review the denial of a motion to reopen under “a h ighly deferentia l abuse-of-discretion standard.” Gomez-Palacios v . Holder , 560 F.3d 3 54, 358 (5th Cir. 2 00 9). The B IA’s d ecision must be upheld as long as i t “is not capricious, racially invidious, utterly without foundation in the evidence, o r otherwise so irrational that it is arbitrary rather than the result of any perceptible rational
app r oach.” Singh v. Gonzales , 436 F.3d 484, 487 (5th Cir. 2006) (internal quotation marks and citation omitted). “[M]otions to reopen deportation proceedings are disfavored, and the movin g p a r t y bears a heavy burden.” Altamirano-Lopez v. Gonzales , 4 3 5 F

. 3d 547, 549–50 (5th Cir. 2006) (internal quotation m arks and citation omitted). Nonetheless, wh e t her an i mmigration proceeding violates due process is a purely legal issue, which we review de novo. Ali v. Gonzales , 4 40 F.3d 678, 681 (5th Cir. 2006) (“We review de novo claims of constitutional error in immigration proceedings.”). We r eview “the order o f the BIA and will c onsider the underlying decision of the IJ o nly if it i nfluenced the determination of the BIA.” Gomez-Palacios , 560 F.3d at 358. Although we review questions of l aw de n ovo, we a ccord “deference to the BIA’s interpretation of immigration statutes u nless the re c o rd reveals compelling evidence that the BIA’s interpretation is incorrect.” Id. We review the BIA’s factual findings for substantial evidence, and we may not overturn the BIA’s factual f

indings unless the evidence compels a c ontrary conclusion. Chun
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v. INS , 40 F.3d 76, 78 (5th Cir. 1994). III First, Ojeda c ontends he is e n t i t l e d t o r e s c i s s i o n o f the i n abstentia deportation order because he did not receive notice of his deportati on hearing. Because Ojeda’s immigration proceedings were initiated prior to the 1996 amendments to the INA , w e m u st apply the notice requirements set forth in former INA § 242B. A d eportation order entered in absentia may be rescinded “upon a motion to reopen filed at any time if t h e alien demonstrates that the alien did not receive notice in accordance with subsection ( a)(2) of this s ection.” 8 U.S.C. § 1 252b(c)(3)(B) (repealed 1996). At the time the IJ is s u e d t h e deportation order in this case, subsection (a)(2) required that, in the case of a ny change or postponement in the time a nd place of [deportation] proceedings, written notice s hall be given in person to the a lien (or, if p e r s o n a l service is not practicable, 1 written n otice shall b e given by certified mail to the alien or t o the a lien’s counsel of record, if a ny) of—(i) the new time or p lace of t h e proceedings, and (ii) the consequences under subsection (c) of this s ection of fai l i n g , except under exceptional circumstances, t o attend such proceedings. 8 U.S.C. § 1252b(a)(2) (repealed 1996). 2 On a motion to reopen, in contrast to the standard for the initial entry of

an in absentia o rder, the focus is whether t h e a lien actually received the required notice and not whether the not i c e w as properly mailed. Gomez-Palacios , 560 F .3d at 360. Nonetheless, when n o tice is sent by certified mail, there i s a strong presumption of effective service. Grijalva , 2 1 I .&N. Dec.

1 Pers onal service is d eem ed im p racticable when the res p ond ent is not in im m igration court bef

ore the IJ. M

a tter of G ri ja l v a , 21 I .& N

. D ec. 27, 35 ( BIA 1995)

.

2 A s im ilar p rovis ion is now f ound at 8 U

. S. C. § 1229a(b) ( 5) ( C) (ii) ( 2013)

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at 37. T o o verco m e t h at presumption the alien must “present substantial and probative evidence such as documentary evidence from the Postal Service, third party affidavits, or other similar evidence demonstrating that there was improper delivery” or nondelivery. Id. “Th e r e is no requirement that the certified mail return receipt be signed by the a lien or a responsible person at his address to effect service.” I d. at 34. “A bald and unsupported denial of receipt of c ertified mail notices is n o t sufficient to support a m otion to reopen t o rescind

an in absentia order” under § 1252b. Id. at 37. If the NOH “reaches the correct address but does not reach the alien through some failure in the internal workings of the household, the alien c an b e charged with receiving p r oper notice.” Matter of G-Y-R- , 23 I. & N. Dec. 181, 189 (BIA 2001). T h e r e cord reflects that the NOH w as delivered via certified mail t o t h e address Ojeda p rovided. Neither Delores Ortiz nor anyone else knowledgeable about the r elevant facts submitted an affidavit. Ojeda’s unsupported denial of receipt of the c e rtified mail notice is insufficient to r ebut the presumption of effective service. As such, we cannot say the BIA’s d ecision that Ojeda could be charged with receipt of the NOH is utterly without foundation or arbitrary. IV Second, Ojeda contends he is entitled to rescission o f the i n abstentia deportation order because the NOH was not written in b oth English and Spanish, as required by statute. The BIA held, “the respondent h as n ot cited to any statute, r egulation, or

case law which requires a notice o f h earing, sent after an OSC is issued, to be in Spanish. Further, even if this was required, the respondent canno t e s t ab lish prejudice because his whole claim i s premised on the fact h e did n ot ever receive the hearing notice.”

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At the time of Ojeda’s deportation p r oceedings, § 1252b(a)(3)(A) (repealed 1996) r equired that “[e]ach order to show cause or other notice under this subsection [subsection ( a) ]

. . . s hall be in English and Spanish.” “Other notices” under s u b section (a) included N O Hs i ndicating the date and time of deportation proceedings had been changed o r postponed. 8 U.S.C. § 1 252b(a)(2). Therefore, § 1252b(a)(3)(A) c learly required that the NOH Ojeda received be prin t ed i n both English and S panish. Ojeda c ited and quoted § 1252b(a)(3)(A) in his motion to reopen and in his brief to t h e BIA. The Government does not contest that the NOH Ojeda received was only i n English. Ojeda has established that the N O H w a s statutorily deficient a nd the portion of the BIA’s decision holding that Ojeda ci t e d t o n o statute requiring an NOH to be in Spanish is “utterly without foundation in evidence.” Singh , 436 F.3d at 487. Accordingly, we turn to consider the BIA’s a lternative holding that even if the NOH was statutorily required t o be printed in both English and Spanish, because Ojeda cannot show prejudice as he c laims h e did not receive the NOH, he i s not entitled to r escission of his deportation order. It is well-settled that the decision whether to grant Ojeda’s motion to reopen his deportation proceedings was purely discretionary . Zhao v. Gonzales , 404 F.3d 295, 303 ( 5th Cir. 2005). An in absentia order of deportation “ may b e rescinded only

. . . upon a motion to reopen f iled at a ny time if the alien demonstrates that the alien did not receive notice i n accordance with s ubsection (a)(2 ) of this section [1252b].” 8 U.S.C. § 1 252b(c)(3)(B) ( emphasis added). Ojeda has cited no a uthority supporting his contention that a violation of § 1252b(a)(3) requiresvacation of an in abstentia deportation order. W e cannot say the BIA’s holding affirming the IJ’s decision that Ojeda is not entitled to r e s c i s s i o n of his deportation order b ecause he did not show prejudice is u nreasonable. Zhao , 4 04 F.2d at 303

. (“[A]n ‘Immigration

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Judge has discret i o n to deny a motion t o reopen even if the moving party has established a pr i m a f a c ie c ase f

or relief.’” (quoting 8 C.F.R. § 1003.23(b)(3) (2003))). Second, we agree with the B IA that Ojeda was not prejudiced by the INS’s failure to print the NOH in Spanish. In his affidavit, Ojeda alleges that h e never received the NOH. Ojeda did not submit a n a f f i d avit f rom O rtiz alleging that

s h e w as unable t o understand or deliver the NOH to Ojeda because it was n o t printed in Spanish. Therefore, even accepting the f acts alleged by Ojeda, the fact the NOH was printed only in English did n ot prejudice Ojeda. Accordingly,

we cannot say the BIA’s holding that Oj eda is not entitled to rescission of his deportat i o n o r d er because he was not prejudiced by the statutory violation is utterly without foundation or arbitrary. 3 V Third, Ojeda contends due p rocess requires the NOH to be in a language that the alien can understand. Due process a llows notice of a hearing t o be given solely in English to a non-English speaker if the notice w ould put a reasonable recipient on notice that further inquiry is r equired. Nazarova v. I.N.S. , 171 F.3d 478, 483 (7th Cir. 1999) (holding N OH written in English for an alien who spoke only Russian satisfied due process); see also Soberal-Perez v. H eckler , 717 F.2d

3 We recognize a p os s ible tens ion exis ts betw een the BIA’s hold ing that Ojed a could be cha r g e d w i th receip t of the N O H and its hold ing that Ojed a w as not p rejud iced by the
s tatutorily d ef

icient N O H becaus e in his af f id avit Ojed a alleges he never received the N O H

. N onetheles s , w e are s atis f ied this res ult d oes not am ount to an abus e of d is cretion by the BIA. Oj ed a contend s he is entitled to res cis s ion of his d ep ortation ord er becaus e he d id not receive the N O H , or alternatively, becaus e the NO H he received w as s tatutorily d ef icient. Becaus e the G overnm ent s ent the N O H by certif ied m ail, Ojed a’s af

f id avit, s tand ing alone, f ailed to rebut the p res um p tion of ef f ective s ervice. G ri

ja lv a , 21 I. & N

. D ec. at 37. F urther, as Ojed a claim s in his af

f id avit that he never received the N O H , w e cannot s ay the BIA’s hold ing that Oj ed a f ailed to s howp rejud ice w as utterly w ithout found ation or arbitrary. 7 Case: 12-60512 Document: 00512335186 Page: 7 Date Filed: 08/08/2013No. 12-60512

36, 43 (2d Cir. 1 9 8 3) (“[A] r ule placing the burden of diligence a nd further inquiry on the part of a non-English-speaking individual served in this country with a notice i n E nglish does not violate any principle of due process.”); Carmona

v. Sheffield , 475 F.2d 7 38, 739 (9th Cir. 1 9 73) (holding due process does not require California to translate its notice of rights under u n employment laws for non-English speakers). Accordi n g l y, the BIA did not err in h olding the NOH comported with due process. VI For these reasons, we DENY Ojeda’s petition for review.

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