UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-1356

ABDULATEEF SHOGUNLE, 

 Petitioner, 

 v. 

ERIC H. HOLDER, JR., Attorney General, 

 Respondent. 

No. 08-1765

ABDULATEEF SHOGUNLE, 

 Petitioner, 

 v. 

ERIC H. HOLDER, JR., Attorney General, 

 Respondent. 

On Petitions for Review of Orders of the Board of Immigration 

Appeals. 

Argued: May 12, 2009 Decided: July 8, 2009 

Before MOTZ, GREGORY, and DUNCAN, Circuit Judges. 

Petitions granted by unpublished per curiam opinion. 
ARGUED: David Christopher Drake, JOHNSON & ASSOCIATES, PC, 

Arlington, Virginia, for Petitioner. Blair Timothy O’Connor, 

UNITED STATES DEPARTMENT OF JUSTICE, Office of Immigration 

Litigation, Washington, D.C., for Respondent. ON BRIEF: Randall 

L. Johnson, JOHNSON & ASSOCIATES, PC, Arlington, Virginia, for 

Petitioner. Gregory G. Katsas, Assistant Attorney General, John 

C. Cunningham, Senior Litigation Counsel, UNITED STATES 

DEPARTMENT OF JUSTICE, Office of Immigration Litigation, 

Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit. 

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PER CURIAM: 

On December 4, 2001, Abdulateef Shogunle was admitted into 

the United States as a non-immigrant visitor with privileges to 

remain until March 3, 2002. However, Shogunle did not depart at 

the end of this period. He subsequently married a U.S. citizen, 

but on October 26, 2006, the U.S. Citizenship and Immigration 

Services (“USCIS”) of the Department of Homeland Security 

(“DHS”) denied his application for adjustment of status based on 

his marriage. The same day, DHS personally served Shogunle with 

a notice to appear in removal proceedings, and he acknowledged 

service with his signature. The notice instructed Shogunle to 

appear in the Baltimore immigration court on January 3, 2007. 

The address on the notice was that provided by Shogunle in his 

application for adjustment of status. 

Shogunle appeared at the immigration court as directed. 

However, at that point, DHS had not filed the notice to appear 

with the immigration court; therefore, the court did not have 

jurisdiction over Shogunle’s case. Shogunle was informed that 

he would receive information about a future hearing. DHS filed 

the notice to appear with the immigration court on January 18 or 

26, 2007.* On February 1, 2007, Shogunle moved. However, prior 

 *

 The notice bears two date stamps, and the Board of 

Immigration Appeals relied on the latter date. 

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to or immediately after his move, Shogunle notified DHS of his 

new address and set up mail forwarding with the U.S. Postal 

Service. Nevertheless, on February 13, 2007, the immigration 

court sent a notice to Shogunle’s previous address alerting him 

to a hearing on April 11, 2007. Because the notice was sent to 

his previous address and, for reasons unknown, was not forwarded 

to his new address, Shogunle did not receive it. On April 11, 

the immigration judge noted that Shogunle had failed to appear 

at the hearing and issued an order in absentia to remove 

Shogunle from the United States. The order was served by mail 

to Shogunle’s original address and was forwarded to his new 

address. 

The immigration judge denied Shogunle’s motion to rescind 

the order and reopen his removal proceedings, and the BIA 

dismissed Shogunle’s appeal on February 26, 2008. The BIA also 

denied Shogunle’s motion for reconsideration, and Shogunle 

petitioned this Court to review both decisions. We have 

consolidated the two actions. 

I. 

“Deportation and asylum hearings . . . are subject to the 

requirements of procedural due process. We review de novo a 

claim that the procedures utilized in such hearings contravened 

due process or the [Immigration and Nationality Act].” Rusu v. 

4 
INS, 296 F.3d 316, 320 (4th Cir. 2002) (internal citations and 

quotations omitted). Pursuant to 8 U.S.C. § 1229a(b)(5)(C) 

(2006), failure to appear at a deportation proceeding shall 

result in an order of removal that may be rescinded only if the 

failure to appear was the result of “exceptional circumstances” 

or “the alien demonstrates that the alien did not receive 

[proper] notice.” Shogunle relies on the second part of 

§ 1229a(b)(5)(C), failure to receive proper notice. The 

requisite notice procedures are set forth in 8 U.S.C. 

§ 1229(a)(1) (2006). 

Neither party disputes that Shogunle provided his new 

address to DHS. The question on which this case turns is 

whether Shogunle was also required to inform the immigration 

court of his change of address. The notice to appear required 

Shogunle to “notify the Immigration Court immediately by using 

form EOIR-33 whenever you change your address or telephone 

number during the course of this proceeding.” (J.A. 119 

(emphasis added).) However, because DHS did not file the notice 

with the immigration court prior to Shogunle’s original hearing, 

the court did not have jurisdiction on the hearing date. 

8 C.F.R. § 1003.14(a) (2009) (“Jurisdiction vests, and 

proceedings before an Immigration Judge commence, when a 

charging document is filed with the Immigration Court by the 

Service.”). Thus, the critical question is whether a 

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“proceeding” had begun during which Shogunle would be required 

to keep the court informed of any change of address. If not, 

then his obligation would have been only to notify DHS of his 

new address, which he did. 

Logically, Shogunle’s argument must carry the day. The 

notice with which he was served named a hearing date, and 

Shogunle showed up to court on that hearing date. However, the 

court did not have jurisdiction as of that date. Because the 

immigration court did not yet have jurisdiction, it could not 

order Shogunle to do anything. Indeed, it was still within the 

discretion of DHS whether to file the notice with the 

immigration court, and it was possible that the court might 

never have jurisdiction. Therefore, the logical entity with 

which to lodge a change of address would be DHS, since it 

controlled whether the action would even proceed any further. 

Granted, DHS did file the notice to appear with the immigration 

court prior to Shogunle’s move. It is therefore arguable that 

Shogunle was under the jurisdiction of the immigration court at 

that point and thus under its change of address requirements. 

However, Shogunle was unaware of this development, and we cannot 

say that it was Shogunle’s burden to keep in constant contact 

with the court to determine when, if ever, the court would have 

jurisdiction. 

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II. 

On the facts with which we are presented, Shogunle properly 

notified the government of a change in his address, and the 

notice of the second hearing that was sent to his previous 

address was defective. We hereby grant Shogunle’s petitions for 

review, reverse the BIA, and remand this case with instructions 

to reopen Shogunle’s removal proceedings. 

PETITIONS GRANTED