2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-28-2011

Dashratlal Patel v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-2736

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-2736

___________

DASHRATLAL PATEL,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A070-703-804 )

Immigration Judge: Honorable Annie S. Garcy

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 1, 2011

Before: FUENTES, VANASKIE and ROTH, Circuit Judges

(Opinion filed: July 28, 2011 )

___________

OPINION

___________

PER CURIAM

Dashratlal Patel, a native and citizen of India, petitions for review of the order of 

the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s order 
2

denying Patel’s motion to reopen. 

Patel entered the United States in 1991 without a valid visa or other entry 

document.1 In 1993, he filed an asylum application, which was denied; his case was 

referred immediately to the immigration court for deportation proceedings. Although the 

Immigration and Naturalization Service (“INS”) sent a hearing notice and show cause 

order to Patel’s record address by certified mail in 1993, the certified mail was returned 

to the INS unclaimed. (A.R. 118-19.) In October 1993, the INS closed the deportation 

proceeding administratively due to Patel’s nonappearance. (A.R. 114.) In August 1994, 

through new counsel, Patel filed a motion to re-calendar his case and submitted a change 

of address form indicating his new address as “141-27 Main Street #1F, Flushing NY 

11367.” (A.R. 106-08.) In December 1994, the INS sent a show cause order and notice 

of a hearing scheduled for February 9, 1995 (hereafter the “1995 notice”), by certified 

mail to Patel using his new address, but the agency failed to include his apartment 

number. (A.R. 98.) The certified mail was returned as undeliverable. (A.R. 94-95.) The 

INS also sent the 1995 notice via certified mail to counsel of record, who confirmed 

receipt. (A.R. at 96-97.) When Patel failed to appear at the February 1995 hearing, the IJ 

held a hearing and entered an in absentia order deporting Patel to India. (A.R. at 90.)

In 2008, with the assistance of new counsel, Patel filed a motion in immigration 

court to rescind the in absentia order and reopen the deportation proceedings. (A.R. 43-

 

1

 Patel married Kokilaben Patel in India in 1980. They have two Indian citizen 
3

85.) He claimed that neither he nor his attorney had received written notice of the 

February 1995 hearing or of the consequences of failing to appear and that he received no 

oral notice in his native language. (A.R. 46-48.) The IJ denied the motion, determining 

that Patel failed to show that he was not properly served with notices and show cause 

orders in 1993 and 1995. The IJ found that although Patel attested that he had received 

no “letters” about deportation proceedings in 1993, he did not specifically deny receiving 

the 1993 hearing notice and show cause order. Pet’r Brf. at A-6, A-7. The IJ also found

that Patel’s retention of new counsel in 1994 to seek re-calendaring of the deportation 

proceedings, demonstrated that Patel knew that he had been placed in deportation 

proceedings in 1994. Id. at A-7. The IJ ultimately concluded that Patel suffered no 

prejudice from the INS’s failure to properly notify him in 1993 because his case was 

closed administratively when he did not appear. Id. at A-7, A-8. As for the February 

1995 hearing, the IJ found that the INS successfully served notice to counsel, which Patel 

failed to rebut. Id. at A-8. The BIA dismissed Patel’s appeal, holding that the IJ’s factfinding was not clearly erroneous. Id. at A-4, A-5.

We have jurisdiction to review final orders of the BIA under 8 U.S.C. § 

1252(a)(1). Where, as here, the BIA expressly adopts the IJ’s decision and reasoning 

pursuant to Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), we review the 

decisions of both the IJ and the BIA to determine whether the BIA’s decision to defer to 

 

children, Bhavika and Ravi. The entire family is now in the United States.
4

the IJ was appropriate.2 Shehu v. Att’y Gen., 482 F.3d 652, 657 (3d Cir. 2007). “We 

review the denial of a motion to reopen a removal order entered in absentia for abuse of 

discretion.” Cabrera-Perez v. Gonzales, 456 F.3d 109, 115 (3d Cir. 2006) (citing INS v. 

Doherty, 502 U.S. 314, 323-24 (1992)). Thus, in order to succeed on the petition for 

review, Patel must ultimately show that the discretionary decision was arbitrary, 

irrational, or contrary to law. See Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994).

Because Patel’s immigration proceedings were initiated prior to the 1996 

amendments to the INA, we must apply the notice requirements set forth in former INA § 

242B [8 U.S.C. § 1252b (repealed 1996)]. Under that statute, aliens were to be notified 

of the time and place of their deportation hearings either in person or by certified mail 

sent to the alien or the alien’s counsel of record. See INA § 242B(a)(2)(A) [8 U.S.C. § 

1252b(a)(2)(A)]. Written notice was sufficient if it was “provided at the most recent 

address” furnished by the alien. Id. Under the pre-1996 law, an in absentia deportation 

order could be rescinded at any time provided the alien demonstrated that he did not 

receive notice in accordance with subsection (a)(2). See INA § 242B(c)(3)(B) [8 U.S.C. 

1252b(c)(3)(B)].

Patel argues that both the IJ and the BIA applied the wrong evidentiary standard in 

 

2

 The IJ also denied reopening sua sponte, a decision that Patel does not 

challenge. In any event, we lack jurisdiction to consider such a discretionary decision. 

See Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003).
5

considering whether he had received proper notice of the 1993 and 1995 hearings.

3 We 

need not dwell on the issue with respect to the 1993 hearing notice because the IJ closed 

the deportation proceedings indefinitely rather than enter a deportation order in absentia.

In any event, it is the notice of February 1995 hearing to which we turn our attention 

because that hearing resulted in the in absentia order that Patel sought to rescind in his 

motion to reopen.

The statute in effect in 1995 provided for written notice via certified mail “to the 

alien or to the alien’s counsel of record.” INA § 242B(a)(2)(A) [8 U.S.C. § 

1252b(a)(2)(A)]. The IJ found that in 1995, the INS attempted to serve Patel by certified 

mail at the most recent address on record, and that the mail was returned as 

undeliverable. The INS, however, successfully served notice of the February 1995 

hearing and the show cause order to the attorney of record by certified mail in accordance 

with the law. Both the IJ and the BIA thus properly applied a strong presumption of 

effective service to counsel of record in Patel’s case. See Santana Gonzalez v. Att’y 

Gen., 506 F.3d 274, 277 (3d Cir. 2007) (strong presumption applies when service of 

notice of a deportation hearing is by certified mail and there is proof of attempted 

delivery) (citing Matter of Grijalva, 21 I. & N. Dec. 27, 37 (BIA 1995)). Patel offered no 

evidence to rebut the strong presumption in immigration court or before the BIA. Id. at 

 

3

 We are unpersuaded by Patel’s claim that the BIA erroneously engaged in factfinding when it noted that Patel failed to exercise due diligence in filing his motion to 

reopen in 2008. The BIA relied on the IJ’s finding that Patel was aware of his 
6

278 (an alien may rebut the strong presumption only by presenting “substantial and 

probative evidence”). Record evidence of Patel’s attorney’s return receipt thus was 

sufficient to establish that notice was properly served. Accordingly, we conclude that 

there was no abuse of discretion by the IJ or the BIA.4

For the foregoing reasons, we will deny the petition for review.

 

deportation proceeding when he filed his motion to re-calendar in 1994.

4

 Because Patel’s claims alleging error by the IJ and the BIA are meritless, his 

related due process claim also fails.