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## In the



# United States Court of Appeals

For the Seventh Circuit

Nos. 08-1423, 08-2017

D AMODARBHAI P ATEL

,

Petitioner

,

v.

E RIC H. H OLDER

, J

R ., Attorney

General of the United States,

Respondent.

Petition for Review of an Order

of the Board of Immigration Appeals.

No. A73-219-452

A RGUED J

ANUARY 28, 2009

— D ECIDED A PRIL 24, 2009 *

Before B AUER

, R

IPPLE , and T INDER

, Circuit Judges.

T INDER

, Circuit J

udge. A n immigration judge ordered

Damordabhai Patel removed in absentia after he failed to

appear at a 2001 hearing. Patel twice moved to reopen,

claiming that he never rece ived notice of the hearing because2 Nos. 08-1423, 08-2017

the Immigration

and Naturalization Service mailed the notice

to the wrong address. The immigration judge denied the

motions, and the BIA affirmed. Patel appeals, but because he

challenges only the BIA’s discretiona ry decision to deny

reopening, we dismiss his petition for lack of jurisdiction.

Background

Patel, who is a citizen of India, e ntered the United States

without permission in 1994 and applied for asylum t hat same

year. In 1998, the INS attempted to set a hearing on his

asylum claim by mailing a notice to appear to his last known

address, in Blue Springs, Misso uri. When Patel notified the

INS that he had changed his address, the INS sent a second

notice via certi

fied mail to his new home in New York.

Someone ( precisely who is disputed) signed the return receipt

with Patel’s surname, tho ugh the first name on the receipt is

illegible.

In N ovember 2000, the INS mailed a third notice to appear

to Patel’s New York

address, informing him that a hearing

had been scheduled fo r March 2, 2001. This notice was

returned as “undeliverable.” Patel did not appear at the

hearing and so the IJ ordered him removed i n absentia. The

order of remov al, mailed to his New York address, was also

returned as undeliverable.

In the mean t ime, Patel had moved to Chicago, where, in

2007, immigration officials found and detained him. Patel,

aided by Attorney Mazher Shah Khan, promptly moved to

reopen the removal pro ceedings, arguing that he never

received the

notice to appear. According to Patel, he had

moved to Chicago in 1998 and in early 1999 h ad written to

the INS to report his new mailing address. In support of this

claim, Patel submitted only a photocopied envelope addressed

to the INS and bear

ing a postage stamp of January 5, 1999.

The government responded that the e nvelope was a fake: its

postage sta

mp was printed using Khan’s stamp meter, which

hadn’t been installed until 2001. The government also argued

that Patel had received at least the second notice to appear,Nos. 08-1423, 08-2017 3

since someone had signed the return r eceipt with his last

name.

The IJ d enied the motion, finding that Patel actually

received the no tice to appear at his New York address.

Although one page of the IJ’s decision is missing fro m the

administrative record, it is clear tha t the IJ was unpersuaded

by Patel’s explanation that another person with the last name

of Patel must have signed the return receipt. Even if Patel

himself had not signed the return receipt, the IJ continued,

the notice was sent shortly after Patel’s move to Chicago and

would likely have been forwarded to his new address.

Moreover, the IJ observed that Patel was required to provide

immigration authorities with his current address, and the only

evid ence that he had done so—the photocopied

envelope—was fraudulent. The IJ therefore concluded that

Patel had failed to meet his burden of proof and that “the

evidence he has submitted likely is fraudulent and t herefore

not worthy of belief.”

Patel, with new counsel, appealed to the Board of

Immigration Appeals. The BIA rejected Patel’s arguments,

noting that he had provided nothing beyond the fraudu l ent

envelope in support of his claim that he had informed the

g overnment of his move to Chicago before the notice was

mailed.

The next day, Patel filed a second motion to reco n sider and

reopen with the BIA. In support of this motion, he claimed

that the New York address used by the INS did not match his

real New York address and that he never filed a change-ofaddress form with the postal service wh en he moved to

Chicago. He also submitted an affidavit from the New York

property’s owner, who asserted that Patel did not live there at

the time the

notice was signed for. Finally, Patel contended

that Khan was i neffective because he had fabricated the

envelope that

purportedly showed Patel had given

immigration autho r ities his Chicago address. Patel insisted

that he had no knowledge of the fake envelope because he

was in detention at the time Khan submitted it to the IJ. He4 Nos. 08-1423, 08-2017

acknowledged , however, that while in detention he had

signed an affidavit confirming that he had mailed a change-ofaddress form in the fake envelope.

The BIA denied

Patel’s second motion as well. The BIA

discounted the property-owner ’s affidavit, since there was no

proof that the affiant actually owned the New York pro p erty.

Moreover, the BIA noted that the affidavit reported that the

Ne w York property was vacant from 1997 to 2000,

contradicting P a tel’s claim that he lived there until December,

1998. And the BIA observed that the affidavit in which Patel

swore that he had mailed the suspect envelope belied his

claim that he had no idea it was fabricated. The BIA therefore

concluded that Patel had failed to identify any error in its first

decision and had not provided any new evidence material to

his case.

Analysis

On appeal, Patel challenges the denial of his motions to

reopen. Although the government does not press the

argument, we may reach the merits of Patel’s case only if we

have jurisdiction over his petition for review. We do not.

Claims of abuse of discretion in deciding m otions to reopen

are outside our jurisdiction. S e e Huang v. Mukasey

, 534 F.3d

618, 620 (7th Cir. 2008); Kuca na v. Mukasey , 533 F.3d 534,

535-37 (7th Cir. 2008). Instead, only constitutional claims and

questions of law are reviewable on appeal. See 8 U.S.C.

§ 1252(a)(2)(D); Huang

, 534 F.3d at 620. Legal questions

include challenges to the BIA’s interpretation of a statute,

regulation, or constitu tional provision, claims that the BIA

misr ead its own precedent or applied the wrong legal

standard, or claims that the BIA failed to exercise discretion at

all. A debowale v. Mukasey, 546 F.3d 893, 896 (7th Cir. 2008).

At issue, then, is whether either of Patel’s two challenges to

the BIA’s dec

i sion (addressed below) presents a constitutional

claim or question of law.

Patel first contends that the BIA erred in concluding that he

received actual notice of the hearing date, placin g too muchNos. 08-1423, 08-2017 5

weight on the certified mail r eceipt signed “Patel.” This

argument does not present a constitutio nal claim, since due

proce ss does not require that the alien “actually receive”

notice of rem

oval proceedings, but only that the government

attempt to de

liver notice to the last address provided by the

alien. Joshi v. Ashcroft , 389 F.3d 732, 735 (7th Cir. 2004).

Although Patel’s brief suggests at one point that the New York

address used by the INS differed from the one that he

provided for the purpose of proper service, Patel does not

develop that claim into a due process challenge. Instead, his

brief repeatedly states that the issue in this case is whether he

“actually received” notice. Given Patel’s failure to develop a

due process argument based on lack of suf ficient notice, he

has not presented a “colora b le” constitutional claim. Z amoraMallari v. Mukasey

, 514 F.3d 679, 696 (7th Cir. 2008).

Patel’s notice argument also does not present a question of

law, sin ce actual receipt is a question of fact that weighs into

the BIA’s discretionary dec ision to reopen an order of

removal. D erezinski v. Mukasey

, 516 F.3d 619, 621-2

2 (7th Cir.

2008). Rather, the BIA’s weighing of the evidence to conclude

that Patel was not entitled to reope ning based on lack of

notice involves a discretionary decision that lies outside our

jurisdiction. Se

e Kucana , 533 F.3d at 537 (concluding that a

challenge to t he BIA’s determination that the petitioner’s

country co nditions had not worsened to the extent of

jus t ifying reopening was non-reviewable); Zamora-Mallari,

5 14 F.3d at 696 (finding no constitutional claim i n the

petitioner’s argument that the BIA gave insufficient weight to

his life circumstances).

But even if we had jurisdiction, Patel’s claim would fail. He

was required to keep the government apprised of his current

add ress—that is why the fraudulent envelope purporting to

change his address was crucial to his case. See 8 U.S.C. §

1305(a); D erezinski

, 516 F.3d at 621. The government

t h erefore had no reason to believe that Patel lived anywhere

other than at the New York address. As this court has

observed, “a certified mailing to an address known to be

current will ordinarily di scharge the government’s duty of6 Nos. 08-1423, 08-2017

notice.” Id.

Patel next contends that, in assessing his second motion to

reopen, the BIA erred in concluding that he knew of and was

involved in Khan’s falsification of the chang e-of-address

envelope. This argument also fails to raise a constitutional

claim or question of law and therefore lies outside our

jurisdiction. S ee Jezierski v. Mukasey, 543 F .3d 886, 890 (7th

Cir. 2008) (holding that we lacked jurisdiction to review BIA’s

conclusion that lawyer was not ineffective in failing to submit

a brief to the BIA). Patel argues only that the BIA improperly

relied on his signed affidavit attesting to the validity of the

fake envelope because that affidavit, like the envelope, was prepared by Khan while Patel was in detention. But this is,

again, a quarrel with the weight the BIA placed on the

affidavit. Patel does not point to any rule of law that required

the BIA to ignore the aff i davit, nor is there any. The BIA’s

conc lusion that Patel participated in his lawyer’s fraud is

therefore beyond our review. J ezierski

, 543 F.3d at 890; see also

Huang , 534 F.3d at 620; Kucana , 533 F.3d at 535-37.

DISMISSED.

RIPPLE, Circuit Judge

, concurring. I concur in the judgment

of the court because it is consonant with the precedent of this

circuit and therefore constitutes the applicable rule of decision

under the doctrines of stare decisis and precedent. I write

separately to suggest, respectfully, th a t, as our court strays

more and more from the view of the maj ority of circuits and

f rom the view of the agency charged with the administra tion

of the statute on an important question threatening the evenhanded application of the immigration law, the time has come

for higher appellate authori ty to determine whether the rest

of the Nation now should follow o u r view or whether we

should re-join the rest of the Nation. See Supreme Court Rule

10.

The cent

ral issue in this case is the interpretation of theNos. 08-1423, 08-2017 7

1 Section 1158(a) pertains to asylum relief; it is not

implicated in this case because the IJ never made a decision

about Mr. Patel’s eligibility for asylum. “door-closing” provision in 8 U.S.C. § 1252(a)(2)(B)(ii). That

section provides that:

no court shall have j urisdiction to review any decision or

action of the A ttorney General or the Secretary of

Homeland Security the authority for which is specified

under this subchapter to be in the discretion of the Attorney

G eneral or the Secretary of Homeland Security, othe r than

the granting of relief under section 1158(a) of this title. 1

This circuit ini tially took the position that section

1252(a)(2)(B)(ii)’s jurisdictional bar applied t o challenges of

discretionary decisions on ly when the IJ was exercising

discretion that had been granted by s t atute; we did not apply

the door-closing provision to bar jurisdiction over exercises of

discretion conferred only by regulation. S ee Singh v. Gonzales

, 404 F.3d 1024, 1026-27 (7th Cir. 200 5 ) (holding that section

1252(a)(2)(B)(ii) did not bar review of an IJ’s denial of a motion to reopen immigration proceedings).

We si nce have reversed course, however, beginning with

our decision in Ali v. Gonzales

, 502 F.3d 659 (7th Cir. 2007).

In Ali , the petitioner sought review of an IJ’s decision to deny

his motion to continue his removal proceedings, which he had

sought so that he could pursue adjustment of his immigration

status. The petitioner argued that the door-closing provision

did not divest us of jurisdiction because, by its terms, that

provision precluded review only of decisions or actions that

are co mmitted to the Attorney General’s discretion by “this

subsection” of the statute: that is, 8 U.S.C. §§ 1151-1381. The

immigration statute makes no mention of motions to

continue; the IJ’s discretion to grant a continuance arise s not

from the sta

tute but from a regulation, 8 C.F.R. § 1003.29.

The petition argued that, therefore, the door-closing provision8 Nos. 08-1423, 08-2017

2 One might question whether this reasoning has any

force in the context of asylum proceedings, final decisions

about which are

subject to judicial review. See Kucana v.

Mukasey , 533 F.3d 534 (7th Cir. 2008) (Cudahy, J., dissenting).

Nevertheless, we subsequently have held that the door-closing

provision applies with equal force to discretionary decisions

made during asylum proceedings. See Huang v. Mukasey , 534

F.3d 618, 620-21 (7th Cir. 2008) (holding that section

1252(a)(2)(b)(ii) bars review of an IJ’s denial of a motion to

reopen asylum proceedings); Kucana , 533 F.3d at 536-39 (same). does not apply to review of an IJ’s decision to deny a motion

to continue. Although the Government agreed with the

petitioner’s position , we nevertheless rejected it. We reasoned

that, although the d iscretion to grant or deny a continuance

was not conferred by

statute, the a

uthority to do so stemmed

from 8 U.S.C. § 1229a, which “c onfers upon immigration

jud ges the authority to conduct removal proceedings.” A li

, 502 F.3d at 660. Without explicitly overruling S ingh, we

concluded that th is statutory nexus was sufficient to trigger

th e door-closing provision. We reached this conclusion in

light of 8 U.S.C. § 1252(a)(2)(B)(i), which provides that the IJ’s

final determination on an application for adjustment of status

is unreviewable by the courts: “Adjustment of status

determinations are unreviewable under § 1252(a)(2)(B)(i); the

IJ’s continuan ce determination is interim to A li ’s

contemplated adjustment of status applicat ion, and interim

orders entered along the road to an unreviewable final order

are themselves unreviewable. ” A li

, 502 F.3d at 661. 2

In

subsequen t cases, we have extended our holding in A li to bar

review of not only motions to continu e, but also motions to

reopen. S ee Huang v. Mukasey , 534 F.3d 618, 620-21 (7th Cir.

2008); Kucana v. Mukasey

, 533 F.3d 534, 536-39 (7th Cir.Nos. 08-1423, 08-2017 9

3 In Kucana , we finally did overrule Singh explicitly, in

part because we recognized that its holding was “not tenable”

after our decision in Ali

. Kucana , 533 F.3d at 537-38. 2008); 3 Jezierski v. Mukasey , 543 F.3d 886 (7th Cir. 2008).

Our broad interpretation of section 1252(a )(2)(B)(ii)’s scope

puts us on the distinct minority side of an interci rcuit split

over the applicability of the door-closing provision to claims

challenging the exercise of discretio n granted by regulation

rat her than by statute. The Eighth and Tenth Circuits have

reached th e same conclusion that we have in the context of a

denial of a conti nuance. S ee Yerkovich v. Ashcroft

, 381 F.3d

990, 995 (10th Cir. 2004 ) ; Onyinkwa v. Ashcroft , 376 F.3d 797,

799 (8th Cir. 2004). Every other circuit, as well as the

Attorney Genera

l, has reached the opposite conclusion: that

s ection 1252(a)(2)(B)(ii) only bars review of decisions made in

the exercise of d iscretion conferred by statute--specifically 8

U.S.C. §§ 1151-1381. S ee Lendo v. Gonzales

, 493 F.3d 439, 441

n.1 (4th Cir. 2007); Alsamhouri v. Gonzales

, 484 F.3d 117, 1 2 2

(1st Cir. 2007); Zafar v. Att'y Gen. , 461 F.3d 1357, 1360-62

(11th Cir. 2006); Khan v. Att' y Gen. , 448 F.3d 226, 232-33 (3d

Cir. 2006); A hmed v. Gonzales

, 447 F.3d 433, 436-37 (5th C ir.

2006); Sanusi v. Gonzales

, 445 F.3d 193, 198-99 (2d Cir. 2006);

Abu-Khaliel v. Go

nzales , 436 F.3d 627, 633-34 (6th Cir. 2006);

Medina-Morales v. Ashcroft

, 371 F.3d 520, 528-29 (9th Cir.

2004). The majority of circuits read section 1252(a)(2)(B)(ii) to

bar review only where both the authority an d the discretion

to make the decision were granted by statute. Hence, these

eight circuits, and the Attorney General, have co ncluded that

the courts do have the authority to review decisions on

motions to

continue and motions to reopen, because the

discretion to grant or deny them is conferred not b y statute

but by regulation.

Notably, no other circ u it has determined, as we did in

Kucana , that section 1252(a)(2)(B)(ii) is a bar to our review of

the denial o f a motion to reopen in an asylum case where the10 Nos. 08-1423, 08-2017

decision affects the al ien’s right to review of substantive

decisions of the Board of Immigr ation Appeals that are based

on a mistake or misunderstanding of the factual basis of a

claim--decisions that the Sup r eme Court has analogized to

motions under Rule 60 of the Federal Rules of Civil

Procedure. Se

e S tone v. INS

, 514 U.S. 386, 401 (1995); see also

Kucana

, 533 F. 3d 534, 539-40 (Ripple, J., concurring

dubitante ). In fact, even the Tenth Circuit, which agrees with

us that motions to continue are not reviewable, has drawn the

line at motions to reopen. S ee Ntiri v. Gonzales

, 227 Fed.

Appx. 749, 752 (10th Cir. 200 7) (“We have jurisdiction to

review the denial of a motion to reopen, at least where judicial

revi ew of the underlying order is not precluded.” (citing

Infanzo n v. Ashcroft

, 386 F.3d 1359, 1361-62 (10th Cir. 2004))).

The immigration l aws of the United States should be

administered even-handed ly across the entire Nation. No

attribute of sovereignty rests in a federal circuit to go its own

way and s

ubject individuals to treatment different from what

they would receive from the United States Government in any

other part of the Country. This principle is especially true in

areas such as immigration and asylum law where decisions of

the administrative process affect so drastically t he course of

the human lives impacted by the decision. I respectfully

suggest that the holdings of Ali and its progeny should be reexamined before their dominion is spread even fur ther afield.

Turning briefly to th e facts of this case, I believe that Mr.

Patel p reserved his due process claim, which we have

j urisdiction to hear because it is a constitutional c laim. 8

U.S.C. § 1252(a)(2)(D); see also Jezie rski , 543 F.3d at 890

(noting that a claim alleging insufficient notice in violation of

due process would be reviewable by this court). However,

because the IJ deter mined, as a matter of fact, that the

Government had in fact sent the no tice to the address

supplied by Mr. Patel and since there was sufficient evidence

to support that determination, I do not believe that this

contention can survive the deferential review that we owe theNos. 08-1423, 08-2017 11

4 Among other things, the IJ noted that Mr. Patel

admitted in his first motion to reopen that he lived at “4

Wedgewood Lane, Miller Place, Long Island City, NY 11764,

until December 31, 1998.” A.R. 135. This was the address to

which the notice was sent. This admission contradicts Mr.

Patel’s argument before the BIA and before this court that he

never lived in Long Island City. The IJ also found that a

return receipt for the notice was signed by someone with the

surname Patel.

As for Mr. Patel’s claim that he submitted a change-ofaddress form to the INS when he moved to Chicago in 1999,

the IJ’s decision to disbelieve it is also supported by substantial

evidence. The only proof that Mr. Patel provided to show that

he submitted the form was his own affidavit and a photocopy

of a postmarked envelope, which he later admitted was forged.

The IJ acted reasonably in finding that Mr. Patel had

fabricated this claim.

In short, the evidence in the record supports the IJ’s

finding that proper notice was mailed to the last address that

Mr. Patel provided. This is all that due process requires. Joshi

v. Ashcroft

, 389 F.3d 732, 736 (7th Cir. 2004). IJ on such a fact-bound conclu sion. 4 Accordingly, I would

deny Mr. Patel’s p etition on the merits rather than dismiss it

for lack of jurisdiction.