Al-Rawahneh v. Immigration & Naturalization Service
Docket: No. 00-4447
Court: Court of Appeals for the Sixth Circuit; May 17, 2002; Federal Appellate Court
Petitioners Ahmad and Khawla Al-Rawahneh, citizens of Jordan, appealed the Board of Immigration Appeals' dismissal of their request to reconsider the denial of a motion to reopen deportation proceedings. They were initially ordered deported in absentia after not appearing at a hearing on January 3, 1992, due to not receiving notice of the hearing. The couple had overstayed their B-2 visitor visas and had moved from their registered address without leaving a forwarding address, leading to undelivered notices.
The Board found that the Orders to Show Cause were properly served via certified mail, which Khawla signed for, and that subsequent hearing notices were also sent to the same address but returned as undeliverable. Petitioners claimed they were unaware of their deportation orders until 1996 when their attorney made a Freedom of Information Act request. In 1997, they moved to reopen the deportation proceedings, arguing that their absence was due to not receiving notices. However, the immigration judge denied their motion, stating that while failure to receive notice can constitute reasonable cause, the petitioners failed to demonstrate that the INS had actual knowledge of their new address. The judge's decision was based on established legal precedents regarding service of documents and reasonable cause for absence from proceedings. The petition for review was ultimately denied, affirming the Board's decision.
In deportation proceedings initiated by the INS, the Order to Show Cause must be served personally to the alien, while other documents can be sent via routine service. Personal service can be executed through direct delivery or certified mail with return receipt requested. Routine service involves mailing documents to the last known address. Respondents are obligated to notify the INS of any address changes within 10 days using Form AR-11. In this case, the Orders to Show Cause were mailed to each respondent on May 21, 1991, with signed return receipts confirming delivery on May 25, 1991. Although the respondents did not receive the notice of hearing, this was due to their failure to inform the INS or the Court of their address changes. They did not provide evidence to justify their absence from the deportation hearing, leading to deportation orders in absentia being attributed to their actions.
A subsequent order, sent to the petitioners’ counsel, stated that it would be final unless an appeal was filed within 80 days; no appeal was made. Instead, the petitioners sought reconsideration, claiming they had moved and informed an INS officer of their new address. The immigration judge denied this motion, stating it did not present new facts or legal changes that warranted reconsideration. The petitioners appealed this denial to the Board of Immigration Appeals (BIA), arguing that their affidavit constituted overlooked evidence and that due process was violated due to lack of actual notice. They also claimed the INS had not made a good faith effort to provide service. On October 20, 2000, the BIA dismissed the appeals, reiterating that a motion to reconsider must include new legal arguments or previously overlooked aspects.
Respondents' motion to reconsider primarily restated earlier claims in an affidavit format without altering the legal or factual basis, which fails to substantiate such a motion in accordance with *Matter of Cerna*. The additional evidence provided did not offer the Immigration Judge new grounds to find the respondents credible regarding their failure to attend a deportation hearing, consistent with *Matter of Patel*. Since respondents did not appeal the original motion to reopen, no related issues were presented. Under Section 242(b) of the Immigration and Nationality Act (INA), a deportation hearing can occur in absentia if the alien had a reasonable opportunity to attend and failed without reasonable cause. Notice requirements under 242(b)(1) mandate that the Attorney General establish regulations to inform aliens of the charges and hearing details, adhering to due process standards that do not necessitate actual notice but rather reasonable notification.
The INA was amended in 1990 to include Section 242B, enhancing notice requirements and penalties for nonappearance, effective only for orders served after June 13, 1992. Petitioners argued that the Board of Immigration Appeals (BIA) improperly allowed the immigration judge to apply 242B retroactively without proper notice; however, this claim was dismissed as the immigration judge confirmed 242B did not apply to the petitioners due to the timing of their orders. The record indicated that the standards of 242B were not applied to their case, and petitioners did not preserve this issue for appeal as it was not raised before the BIA. The standard for reviewing denials of motions to reopen or reconsider is for abuse of discretion, as established in *INS v. Doherty* and *Stone v. INS*.
Motions to reopen and reconsider are distinct, with different requirements as outlined in Matter of Cerna. A motion to reconsider requests the Board to reexamine its decision based on new legal arguments or overlooked aspects, while a motion to reopen relies on new evidence or changes in factual circumstances. The petitioners did not appeal the denial of their motion to reopen, leading the BIA to conclude that related issues were not properly before it. The petitioners claimed the BIA abused its discretion in affirming the denial of reconsideration because their affidavit presented a previously overlooked argument. However, the BIA did not abuse its discretion in rejecting the affidavit as it merely reiterated prior claims regarding the failure to notify the INS of their new address, which was not provided in a timely manner. The law requires aliens to inform the Attorney General of address changes within ten days, and due process is satisfied if notice is sent to the last known address, even if it is returned undeliverable. The BIA found no reasonable cause for the petitioners' failure to attend their deportation hearing since they had moved without leaving a forwarding address. The petition for review was denied, affirming the BIA's dismissal of the appeals from the denial of the motion for reconsideration. The deportation provisions were reallocated under Section 237 of the INA, but this change does not impact the current proceedings, which were initiated before that change. Statements in legal briefs lack evidentiary weight, and while Section 242B was repealed, similar provisions remain in effect under 8 U.S.C. 1229 and 1229a.
