NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 18-1857

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JORGE ROSENDO DE JESUS, AKA Jorge Luis Benancio-Collas,

 Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

Respondent

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On Petition for Review of an Order of the 

United States Department of Justice

Board of Immigration Appeals

(Agency No. A200-021-485)

Immigration Judge: Honorable John B. Carle

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Submitted Under Third Circuit LAR 34.1(a)

October 30, 2018

Before: CHAGARES, JORDAN, and VANASKIE, Circuit Judges.

(Filed: November 28, 2018)

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OPINION*

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JORDAN, Circuit Judge.

 

* This disposition is not an opinion of the full court and, under I.O.P. 5.7, does not 

constitute binding precedent.
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Jorge Rosendo De Jesus petitions for review of a decision of the Board of 

Immigration Appeals (“BIA”) dismissing his appeal from the denial of his motion to 

reopen an in absentia removal order. For the reasons that follow, we will deny the 

petition in part and dismiss it in part. 

I. BACKGROUND

De Jesus entered the United States from Mexico without inspection in April 2006. 

Almost immediately thereafter, on May 5, 2006, he was detained during a traffic stop and 

transferred to the custody of Immigration and Customs Enforcement (“ICE”) officials. 

De Jesus admitted that he was a native and citizen of Mexico and in the United States 

illegally.1 He was personally served with a Notice to Appear (“NTA”) and then released 

from custody. 

The NTA charged “Jorge ROSENDO DE JESUS,” alien number A200-021-485,

with being removable as an alien present in the United States without being admitted or 

paroled. It listed De Jesus’s address as the ICE facility where he was being detained. It 

also ordered him to appear before an Immigration Judge (“IJ”) in Pittsburgh, 

Pennsylvania, on November 6, 2006 at 1:00 pm and described the allegations against 

him, including that he is a native and citizen of Mexico. The NTA went on to warn that 

if De Jesus moved and failed to provide a new mailing address, the government would be 

relieved of its obligation to provide further written notice concerning his hearing and that 

a failure to attend his hearing could result in a removal order being entered in his 

absence. The Certificate of Service in De Jesus’s alien file specifies that, when he was 

 

1 De Jesus disputes that he is a native and citizen of Mexico. 
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given the NTA, he was provided oral notice in Spanish of the “time and place” of his 

immigration hearing “and of the consequences of failure to appear.” (App. at 135.)

De Jesus apparently signed the Certificate of Service, acknowledging personal service. 

So did an immigration officer. 

In August 2006, a Notice of Hearing in Removal Proceedings was mailed to De 

Jesus at the ICE facility listed on the NTA. The Notice of Hearing listed an incorrect 

alien number, A00-021-485, mistakenly dropping the “2” that should have followed “A.”

De Jesus failed to appear at his immigration hearing on November 6, 2006. Nevertheless,

an IJ ordered him removed to Mexico. The removal order listed the same incorrect alien 

number for De Jesus. 

De Jesus did not leave the country. Over a decade later, his mother, an American 

citizen, filed a Form I-130 Petition for Alien Relative on his behalf. De Jesus then moved 

to reopen his case and rescind the removal order. His motion included an affidavit 

challenging fundamental facts related to that order. For example, De Jesus stated that he 

is from Peru, not Mexico; that his alien number is A200-021-485, not A00-21-485; and 

that he did not receive notice of his removal hearing. He signed the affidavit “Rosendo 

De Jesus, Jorge A/K/A Benancio-Collas, Jorge Luis.” He also provided a copy of a 

passport and other documents purporting to show that he is a native and citizen of Peru 

named Jorge Luis Benancio-Collas. 

The IJ denied De Jesus’s motion to reopen, and the BIA in turn denied the timely 

appeal of that decision. It gave several reasons for its ruling. First, in keeping with the 

IJ’s conclusion, it said that De Jesus was “properly advised, provided a copy of the NTA, 
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and did not appear at the hearing.” (App. at 7.) Second, it determined that the listing of 

an incorrect alien number in the Notice of Hearing and again in the IJ’s removal order 

amounted only to de minimis errors that did not prevent De Jesus from attending his 

hearing or providing the immigration court with his proper address. Third, the BIA 

concluded that reopening the case to await the outcome of De Jesus’s mother’s I-130 

petition was not warranted because De Jesus had failed to provide prima facie evidence 

of eligibility for adjustment of status. Finally, the BIA agreed with the IJ that the pending 

I-130 petition did not warrant sua sponte reopening of the case. 

De Jesus has timely petitioned for review. 

II. DISCUSSION2

De Jesus argues that the BIA abused its discretion in finding that he received 

proper notice of his removal proceedings, in finding that the errors contained in the NTA 

were de minimis, and by refusing to reopen his case sua sponte. We disagree. 

First, De Jesus contends that he did not receive proper notice of his removal 

proceedings or of the consequences of failing to appear, and that the BIA abused its 

discretion in finding that he did. That argument is unavailing. Under the Immigration 

and Nationality Act, an alien is entitled to notice of certain information before removal 

 

2 The BIA had jurisdiction under 8 C.F.R. § 1003.1(b). We have jurisdiction 

pursuant to 8 U.S.C. § 1252. In immigration cases, we review the denial of a motion to 

reopen for abuse of discretion. Ramos-Oliveri v. Att’y Gen., 624 F.3d 622, 625 (3d Cir. 

2010). We give the BIA’s decision broad deference and generally do not disturb it unless 

it is “arbitrary, irrational, or contrary to law.” Filja v. Gonzales, 447 F.3d 241, 251 (3d 

Cir. 2006) (citation and quotation marks omitted). We review factual determinations for 

substantial evidence and legal questions de novo. Borges v. Gonzalez, 402 F.3d 398, 404 

(3d Cir. 2005).
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proceedings commence. 8 U.S.C. § 1229(a)(1). Among them is the “time and place at 

which the proceedings will be held.” Id. at § 1229(a)(1)(G)(i); see also Pereira v. 

Sessions, 138 S. Ct. 2105, 2113-14 (2018) (“A putative notice to appear that fails to 

designate the specific time or place of the noncitizen’s removal proceedings is not a 

notice to appear under section 1229(a)....” (internal quotation marks 

omitted)). Notice can be made effective either by personal service or service by mail. 8 

U.S.C. § 1229(a)(1)-(2). An alien may file a motion to reopen his case at any time if that 

motion shows such notice was ineffective. Id. § 1229a(b)(5)(C)(ii). Here, substantial 

evidence supports the BIA’s factual determination that De Jesus was personally served

with the requisite notice, notwithstanding De Jesus’s affidavit to the contrary. 

As the BIA noted, and as De Jesus concedes, the Certificate of Service 

accompanying the NTA indicates that De Jesus was given oral notice, in Spanish, of the 

removal proceedings against him, of the requirement that he appear before the IJ on 

November 6, 2006 at 1:00 pm at the location specified, and of the consequences for 

failing to do so. De Jesus does not dispute that he was arrested by ICE on the day the 

NTA issued. And he does not dispute in his affidavit that he is also known as De Jesus or 

that the Certificate of Service is signed “De Jesus” and bears a distinctive mark similar to

his signature on documents submitted with his motion to reopen. Beyond that evidence, 

“there is a presumption of legitimacy accorded to the Government’s official conduct” that 

typically must be overcome by clear evidence. Nat’l Archives & Records Admin. v. 

Favish, 541 U.S. 157, 174 (2004). De Jesus’s affidavit, which states that officers were 

“rushing” to finish processing him (App. at 106), is not clear evidence that the ICE 
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officers did not properly discharge their duty to inform him of the charges against him, 

his obligations to provide the government with his address and to attend his removal 

hearing, or of the consequences of failing to do so. That is particularly so since an ICE 

official signed the NTA certifying that De Jesus had been provided notice, in his native 

language, of the time and place of his hearing and the consequences for failing to appear. 

Accordingly, we will not disturb the BIA’s ruling.

3

De Jesus’s second argument, that the BIA abused its discretion in finding that 

factual errors in the NTA were de minimus, also lacks merit. He contends that the BIA’s 

“discount” of what he claims are errors in the NTA – listing the wrong name, alien 

number, and country of citizenship, as well as its bearing a signature that he says is not 

his – qualifies as an abuse of discretion.4 As De Jesus sees it, those purported errors 

“call[] into question the rationality of the Board’s decision” and are so serious that it 

would be “fundamentally unfair to deny reopening” his case, making the Board’s 

decision to do so an abuse of discretion. (Opening Br. at 12-13.) Apart from his failure 

 

3 De Jesus dedicates a significant portion of his brief to arguments about mailed 

notice. But personal service of the NTA is all the notice that was required. See 8 U.S.C. 

§ 1229(a)(1) (“[W]ritten notice ... shall be given in person ... (or, if personal service is 

not practicable, through service by mail....”)).

4 De Jesus also says that it is a constitutional violation to remove an alien to a 

country where that alien is not a citizen. That has no bearing on our analysis of whether 

the BIA abused its discretion in dismissing the appeal of his motion to reopen. 

Moreover, even if that proposition were correct, the Department of Homeland Security is 

not limited by the IJ’s order. See 8 C.F.R. § 1240.12 (“In the event that the Department 

of Homeland Security is unable to remove the alien to the specified or alternative country 

or countries, the order of the immigration judge does not limit the authority of the 

Department of Homeland Security to remove the alien to any other country as permitted 

by section 241(b) of the Act.”). And certain aliens may designate the country to which 

they want to be removed. 8 U.S.C. § 1231(b)(2)(A).
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to provide any authority for that proposition, De Jesus faces another problem: the BIA 

did not find that the NTA contained any errors. The BIA simply noted that the NTA that 

was handed to him listed the correct alien number, 200-021-485, and that any later errors 

in the Notice of Hearing and IJ’s removal order were de minimus and “did not prevent 

[De Jesus] from attending his removal hearing or providing the Immigration Court with 

his correct mailing address.” (App. at 7.) To the extent De Jesus challenges the 

effectiveness of the notice he received based on alleged errors in the NTA, as discussed 

above, substantial evidence supports the BIA’s conclusion that he was personally given

the requisite notice.

Finally, De Jesus challenges the BIA’s refusal to reopen his case sua sponte. He 

argues that the totality of the circumstances of his case – the pending I-130 petition filed 

on his behalf, humanitarian factors, the public interest, and purported lack of notice –

makes his case exceptional, such that the BIA abused its discretion by not concluding the 

same. That argument also fails.

The BIA’s discretion to decide whether to reopen a case sua sponte is “essentially 

unlimited,” which makes BIA orders declining to exercise that discretion “functionally 

unreviewable.” Sang Goo Park v. Att’y Gen., 846 F.3d 645, 651 (3d Cir. 2017). 

Accordingly, we generally lack appellate jurisdiction to review a BIA decision to deny 

reopening a case sua sponte. Id. While there are exceptions to that general rule, id. at 

651-56, De Jesus has not invoked them. We thus lack jurisdiction to consider that aspect 

of the BIA’s decision, id. at 651, and will dismiss that portion of the petition for review.
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III. CONCLUSION

For the foregoing reasons, we will deny the petition for review in part and dismiss 

it in part.