United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 10-1693

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Ahmed Ashfaque, *

*

Petitioner, *

* Petition for Review of a

v. * Decision of the United States

* Board of Immigration Appeals.

Eric H. Holder, Jr., Attorney *

General of the United States, *

 *

Respondent. *

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Submitted: December 15, 2010

 Filed: April 12, 2011

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Before LOKEN, ARNOLD, and BYE, Circuit Judges.

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ARNOLD, Circuit Judge.

Ahmed Ashfaque, a native and citizen of Bangladesh, petitions for review of

an order of the Board of Immigration Appeals denying his motion to reopen his

removal proceeding and rescind its order of removal. Mr. Ashfaque contends that he

did not receive appropriate notice of the removal hearing, which the immigration court

held in absentia. We deny the petition.
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I.

Mr. Ashfaque entered the United States on a non-immigrant visitor visa that

authorized him to stay for six months. Four years later, he married another

Bangladeshi national, and they applied to have their status adjusted. During an

interview, the Immigration and Naturalization Service (now subsumed within the

Department of Homeland Security) determined that Mr. Ashfaque's wife had

presented a fraudulent document that they both relied on to support their applications.

The INS then arrested and detained the couple and served Mr. Ashfaque with a socalled "notice to appear" (NTA); the NTA charged him with being subject to removal

because he had remained in the country without authorization and ordered him to

appear before an immigration judge at a date and time "To be Set," "to show cause

why [he] should not be removed." See 8 U.S.C. § 1229(a)(1). Mr. Ashfaque and his

wife retained counsel, R. Leo Pritschet, who filed a motion to set bond. At the bond

hearing, Mr. Ashfaque appeared and testified, and the court set bond; the couple was

released a few days later when bond was posted. Mr. Pritschet appeared for the

removal hearing but his clients did not. The IJ, after questioning Mr. Prtischet about

his clients' absence, proceeded with the hearing in absentia and afterward ordered that

Mr. Ashfaque and his wife be removed to Bangladesh.

About ten years later, United States Customs and Immigration Enforcement

officers arrested Mr. Ashfaque based on the removal order. Mr. Ashfaque, now

represented by new counsel, moved to reopen the removal proceeding, contending that

he had not received proper notice. The IJ – who had presided at the earlier hearings

– denied the motion. In addition to finding that the written record showed that the

immigration court had issued a notice for the removal hearing on the day of the bond

hearing and served it on Mr. Pritschet, the court reviewed an audiotape of the removal

hearing. Based on the tape, the IJ found that "[Mr. Pritschet] acknowledge[d] to the

Court that [Mr. Ashfaque] and his then-wife were served with notice of the hearing

on the date of the bond hearing." The immigration court held that service was "made
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in compliance with all legal requirements" and denied Mr. Ashfaque's motion to

reopen. 

Mr. Ashfaque appealed to the BIA, which ordered transcripts of the bond and

removal hearings, sent copies to the parties, and gave the parties time to supplement

their briefs after reviewing the transcripts. Mr. Ashfaque did not object to the

transcripts or amend his brief, and the BIA dismissed his appeal, relying, in part, on

the transcript of the removal hearing.

II.

An alien who fails to appear at his removal proceeding is subject to removal in

absentia if the government establishes that he received proper written notice and is

removable. See 8 U.S.C. § 1229a(b)(5)(A). An in absentia removal order "may be

rescinded," however, "upon a motion to reopen filed at any time if the alien

demonstrates that [he] did not receive notice in accordance with ... section 1229(a)."

8 U.S.C.A. § 1229a(b)(5)(C)(ii).

Under the Illegal Immigration Reform and Immigrant Responsibility Act, we

have no jurisdiction to review a decision of the attorney general (or the BIA, acting

on his behalf) "the authority for which is specified under this subchapter to be in the

[attorney general's] discretion." 8 U.S.C. § 1252(a)(2)(B)(ii). But Congress has

excepted from the scope of that subsection judicial review of "constitutional claims

or questions of law." 8 U.S.C.A. § 1252(a)(2)(B), (a)(2)(D). Although the word

"may" in the relevant clause, i.e., an in absentia order "may be rescinded," appears to

vest the attorney general with discretion to make the ultimate determination of

whether to rescind the order, we have jurisdiction to review the predicate question of

whether he properly interpreted the law in reaching his conclusion. 8 U.S.C.

§ 1229a(b)(5)(C); cf. Sanchez-Velasco v. Holder, 593 F.3d 733, 735 (8th Cir.2010).
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Mr. Ashfaque maintains that the BIA erred because § 1229(a) required him to

be personally served with notice and he was not. Section 1229(a) provides that

"written notice shall be given in person to the alien (or, if personal service is not

practicable, through service by mail to the alien or to the alien's counsel of record, if

any)." Mr. Ashfaque contends that service on an alien's "counsel of record" (albeit

"by mail") will satisfy § 1229(a) only if personal service on the alien himself is "not

practicable." He further asserts that personal service was "practicable" in his case

because he attended the bond hearing and remained in INS custody until he was

released on bond several days later. Although we have jurisdiction to address this

legal question, we need not do so here because the BIA concluded on a sufficient

record that Mr. Ashfaque was in fact personally served with notice of the removal

hearing.

After noting that the written notice indicates that it was served on counsel, the

BIA found that the transcript of the removal hearing shows that Mr. Pritschet was

present and "acknowledged that [Mr. Ashfaque] was served with the Notice of

Hearing at his bond hearing," relying on the following colloquy between the IJ and

Mr. Pritschet: 

Q. Mr. Pritschet, the respondents [Mr. Ashfaque and his wife] are not present

in Court today. Do you have any explanation for their failure to appear?

A. No, I do not, Your Honor.

Q. Okay. You acknowledge they were served with Notice of the Hearing at the

last hearing date ... the date [of] the bond hearing.

A. That's correct, Your Honor.

Q. Okay.

"[B]ased on [Mr. Pritschet's] representation" and the notice on file, the BIA

found "that both [Mr. Ashfaque] and his counsel received notice of the respondent's

hearing." Insofar as Mr. Ashfaque questions whether record supports the BIA's

finding, we conclude that it plainly is. See 8 U.S.C. § 1252(b)(4)(B). Having upheld

a finding that Mr. Ashfaque was served with notice at the bond hearing, we must
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reject his argument for reopening the removal proceeding, which requires a finding

that he was not served.

III.

We see no merit to Mr. Ashfaque's argument – based on his detention prior to

being released on bond – that the BIA should have granted him relief under an

alternative provision that permits rescission of an in absentia removal order if the

alien was "in Federal or State custody and the failure to appear was through no fault

of [his own]," 8 U.S.C.A. § 1229a(b)(5)(C)(ii).

We deny the petition for review.

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