* After an examination of the briefs and the record, we have concluded that oral

argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.

See Fed. R. App. P. 34(a)(2). 

# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted April 5, 2005 *

Decided April 6, 2005

Before

Hon. KENNETH F. RIPPLE, Circuit Judge

Hon. MICHAEL S. KANNE, Circuit Judge

Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 04-4037

JOSE L. LEMUS-HERNANDEZ,

Petitioner

,

v.

ALBERTO R. GONZALES,

Attorney General of the United States,

Respondent

. Petition for Review of an Order of the

Board of Immigration Appeals

No. A71-467-381

O R D E R

Mexican national Jose Lemus-Hernandez appeals from the denial of his motion to

reopen deportation proceedings dating back to 1991. He alleges that he was deprived

of due process because the post office failed to deliver the notice sent to inform him of

his deportation hearing that year. For the reasons that follow, we deny the petition.

Lemus-Hernandez entered the United States without inspection in February 1989.

He came to the attention of the INS in March 1991 wh en police stopped him on

suspicion of gang involvement. On determining that he was an undocumented alien, UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53No. 04-4037 Page 2

1 The timeliness of the appeal is not at issue, however, since the government has

conceded that the BIA was mistaken on that ground. ( See Att’y Gen. Br. at 11 n.9.) the police turned him over to the INS. The INS ordered him to show cause why he

should not be deported, and, obtaining from him an address at which he could be

reached, released him on his own recognizance. The address Lemus-Hernandez gave

the police, and the INS, w a s that of his aunt, with whom he was living at the time.

However, Lemus-Hernandez did not specify that mail should be sent to him “care of”

his aunt. When the INS tried to send the notice of his deportation hearing about two

months later, the notice was returned, st amped “No Name on Apartment Mailbox.

Addressee Unknown.” Not having received the notice, Lemus-Hernandez did not

appear at the hearing and was ordered deported in absentia.

The record does not show that the INS ever tried to contact him again, and LemusHernandez apparently did not inquire as to what had become of his case. Almost

twelve years passed, and then, in January 2003, Lemus-Hernandez filed the motion

to reopen that is the basis of this appeal. He alleged that he was not able to appear at

his hearing because he did not receive notice of the date, time, and place. He does not

explain the lengthy delay in filing, but in any case, the motion to reopen was denied

by the IJ on grounds that actual receipt is not required to make notice adequate and

that Lemus-Hernandez was “negligent” in failing to include a “c/o” designation in his

address. The BIA deemed Lemus-Hernandez’s notice of appeal untimely, 1 but

nevertheless summarily affirmed the IJ’s decision.

We review the BIA’s denial of a motion to reopen for abuse of discretion. Awad v.

Ashcroft

, 328 F.3d 336, 341 (7th Cir. 2003). Because the BIA summarily approved the

IJ’s opinion, the IJ’s opin ion is the basis of our review. T olosa v. Ashcroft

, 384 F.3d

906, 908 (7th Cir. 2004); Krouchevski v. Ashcroft , 344 F.3d 670, 671 (7th Cir. 2003).

According to the statute governing notice of a deportation hearing in 1991, 8 U.S.C.

§ 1252(b) (1990), “[T]he alien shall be given notice, reasonable under all the

circumstances, of the nature of the charges against him and of the time and place at

which the proceedings will be held.” S ee In re Huete

, 20 I. & N. Dec. 250, 252 (BIA

1991) (interpreting the statute in the context of notice for Orders t o Show Cause).

Such notification did not always have to be made by personal service, s ee 8 C .F.R.

§ 103.5a(c)(1) (1990)(“personal service ” is required only for “service of the initiating

notice and of notic

e of any decision by a Service officer”). Rather, notification of

information about the hearing, after the initial Order to Show Cause has been served,

is to be made by routine service, which means “mail ing a copy by ordinary mail

addressed to a person at his last known address,” see 8 C.F.R. § 103.5a(a)(1). S ee also

Joshi v. Ashcroft

, 389 F.3d 732, 736 (7th Cir. 2004) (applying same standard for

proceedings initiated today).No. 04-4037 Page 3

On appeal, Lemus-Hernandez’s strongest argument is that he did not get notice

because the postal service improperly delivered the mail. He believes that the postal

service should have left the INS’s letter in his aunt’s mailbox, even though it lacked

the “in care of” designation. However, he cites no authority in support of this

proposition.

The record sh ows that the INS did all it was obligated to do under the relevant

statutes and regulations. In May 1991 it personally served Lemus-Hernandez with an

Order t o Show Cause, so that he was aware that proceedings had been initiated

against him. Then it sent a notice of the date and time of his hearing to the only

address he had provided for the purpose of receiving such mail. Moreover, the postal

service attempted to deliver the notice, as corroborated by postal markings stamped

on the envelope. As the IJ pointed out, Lemus-Hernandez is responsible for his failure

t o receive notice because he did not comply with his obligations under the postal

regulations. See Sharif v. Ashcroft

, 280 F.3d 786, 788 (7th Cir. 2002) (holding that

where the “address

problem is the fault” of the alien, “there is no constitutional

problem with the ag

ency’s procedures and no basis for judicial relief”). The address

Lemus-Hernandez provided was incomplete u nder the postal regulations because it

failed to inc

lude a c/o designation, s ee Postal Serv. Domestic Mail Manual § 153.16

(1990), and without that designation the mail could not be properly deliv e red. C f.

Hoffenberg v. Comm’r of Internal Revenue

, 905 F.2d 665, 666 (2d Cir. 1990 ) (citing

§ 153.16 and concluding that IRS’s addition of an “in care of” line in otherwise correct

address used in notice of deficiency did not render address incorrect). In any event,

Lemus-Hernandez has the burden of proof on appeal that the BIA erred in its decision,

see Capric v. Ashcroft

, 355 F.3d 1075, 1086 (7th Cir. 2004), and he has nothing to offer

but the unsupported assertion that the IJ was imposing a “new judicial requirement.”

The IJ and the BIA didnot abuse their discretion in determining that LemusHernandez was properly served with notice of his deportation hearing. Therefore, we

must DENY the petition.