NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 1 8

- 1857

_____________ JORGE ROSENDO DE JESUS, AKA J orge Luis Benancio

- Collas , Petitioner

v. ATTORNEY GENERAL UNITED STATES OF AMERICA , Respondent

___ ____________ 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: Hon orable John B. Carle

_______________ Submitted Under Third Circuit LAR 34.1(a)

October 30, 201 8 Before: CHAGARES, JORDAN, and VANASKIE , Circuit Judges.

(Filed: November 28, 2018 )

_______________ OPINION *

_______________

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.2

Jorge Rosendo De Jesus petitions for review of a decision of the Board of Immigration Appeal s (“BIA”) dismissing his appeal from the denial of his motion to
reopen an in absentia removal order. For the reasons that follow , w e will deny the petition in part and dismiss it in part

. I. B ACKGROUND De Jesus e ntered the United States from Mexico witho ut inspection in April 2006

. Almost immediately thereafter , o n May 5, 2006, he was detained during a traffic stop and transferred to the custody of I mmigrat ion and Customs Enforcement (“ICE”) officials

. D e 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 A ppear (“ NTA ”) and then released from custody

. T he 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

a lso ordered him to appear before an Immigration Judge (“ IJ ”) in Pittsburgh, Pennsylvania , on November 6, 2006 at 1:00 pm a nd described the allegations against him, including that he is a native and citizen of Mexico. The NTA went on to warn t hat if De Jesus moved and failed to provide a new mailing address , the government would be relieved of its obligation to provide furthe r 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 specifie s that , when he was

1 De Jesus disputes that he is a native and citizen of Mexico.3

given the NTA, he was provided o ral 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 N otice 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

. Neverth e less,

an IJ ordered him removed to Mexico

. The removal order listed the same incorrect alien number for De Jesus.
D e Jesus did not leave the country

. O ver a decade lat er, his mother, an American citizen , filed a Form I

- 130 Petition for Alien Relative on his behalf. De Jesus then m oved to reopen his case and rescind the r emoval order. His motion included an affidavit challenging fundamental fact s related to that order

. For example, De Jesus stated that he is from Peru, not Mexico ; that h is alien number is A200

- 021

- 485 , not A 00

- 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, Jorg e Luis .” He also provided a copy of a passport and other document s purporting to show that he i s a native and citizen of Peru
named Jorge Luis Benancio

- Collas

. T he IJ denied De Jesus’s motion to reopen , and the BIA in turn denied the timely appeal of th at decision

. It gave several reasons for its ruling. First, i n keeping with the IJ’s conclusion, it said that De Jesus was “properly advised, provided a copy of the NTA,4

and did not appear at the hearing.” ( App. at 7.) Second, it determine d that the li st ing of

an incorrect alien number in the Notice of Hearing and again in the IJ’s removal order
amounted only to de minimis error s that did not prevent De Jesus from attending his hearing or providing the immigration court with his proper address. Third, the BIA conclud ed that reopening the case to await the outcome of De Jesus’s mother’s I

- 130 petition was not warranted because D e Jesus had failed to provide prima facie evidence of eligibility for adjustment of status. Finally, th e 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. D ISCUSSION 2
De Jesus argues that the BIA abused its discretion in finding that he received proper notice of his removal proce edings , in finding that the errors contained in the NTA

were de minim i s , and by refusing to reopen his case sua sponte
. We disagree

. First, De Jesus contends t hat he did not receive proper notice of his removal proceedings or of the consequences of fail ing to appear , and that the BIA abused its discretion in finding that he d id. 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 purs uant 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. Gonzal ez , 402 F.3d 398, 404 (3d Cir. 2005).5

proceedings commence . 8 U.S.C. § 1 229(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) ). N otice 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 mo tion to reopen his case at any time if th at motion shows such notice was ineffective. Id. § 1229a( b)(5)(C)(ii). Here, s ubstantial evidence supports the BIA’s factual determination that De Jesus was personally served with the requis i te notice , notwithstan ding 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

r emoval proceedings against him, of the requirement t hat he appear before the IJ on November 6, 2006 at 1:00 pm at the location specified, and of the cons e quen ces f or failing to do so. D e Jesus does not dispute that he was arrested by ICE on the day the NTA issued . And he does not dispute in his affidavit t hat he is also know n 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 a ccorded 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 c lear evidence that the ICE6

officers did not properly discharge their dut y 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, w e 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

– list ing the wrong name, alien number, and country of citizenship, as well as its bear ing a signature that he says i s not his

– qualifies as an abuse of discretion. 4 As De Jesus sees it, those purported errors “call[] into question the rationality of th e 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 1 2

- 1 3 .) 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

. S ee 8 U.S.C. § 1229(a)(1) ( “[W]ritten notice

... shall be g iven in person

... (or, if personal service is not practicable, through service by mail....” ) ).

4 De Je sus also says that it is a cons t it uti onal 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 t he 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 c ountry 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).7

to provide any authority for th at p ropo sition, De Jesus faces another problem: the BIA did not find that the NTA contained any errors . The BIA simply noted t hat the NTA that was handed to him l isted the correct alien number, 200

- 021

- 485, and that any later errors in the Notice of Hearing and I J’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

. ” (A pp. at 7.) T o the extent De Jesus challenge s the effectiveness of the notice he r eceived based on alleged errors in the NTA , as discussed above, substantial evi dence supports the BIA’s conclusion that he was personally given the requisite notice. Finally, D e 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 conclu ding 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 “f unctionally 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 t here are exceptions to th at general rule , id. at 651

- 56 , De Jesus has not invoke d them

. W e thus lack jurisdiction to consider that aspect of the BIA’s decision , id

. a t 651, and will dismiss that portion of the petition for review.8

III. C ONCLUSION For the foregoing reasons , we will deny the petition for review in part and dismiss it in part

.