Nidia Del Rosario URBINA-OSEJO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent

Citations: 124 F.3d 1314; 97 Daily Journal DAR 12341; 97 Cal. Daily Op. Serv. 7665; 1997 U.S. App. LEXIS 26479Docket: 95-70648

Court: Court of Appeals for the Ninth Circuit; September 26, 1997; Federal Appellate Court

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Nidia Del Rosario Urbina-Osejo appeals the denial of her motion to reopen immigration proceedings after the Board of Immigration Appeals (BIA) ruled she abandoned her asylum application by not appearing at her deportation hearing eight years prior. Urbina contends she did not receive notice of the hearing because the notification was sent to an outdated Miami address, and she argues the BIA failed to address her reasonable cause for non-appearance. Additionally, she claims the BIA's refusal to reopen her case regarding suspension of deportation was an abuse of discretion due to inadequate consideration of the extreme hardship factors necessary for her claim. The court agrees that the BIA did not properly consider Urbina's lack of notice and that its evaluation of her suspension claim was insufficient. The decision is therefore remanded to the BIA for further review.

Urbina, a Nicaraguan citizen, entered the U.S. in 1986 and was later ordered deported after failing to appear for her hearing. After moving to San Francisco without notifying the INS, she did not receive the hearing notice sent to her previous Miami address. Following her deportation order, she settled in San Francisco, completed high school, and worked in various jobs. In 1994, she filed a motion to reopen her deportation proceedings, which was denied by the Immigration Judge and subsequently dismissed by the BIA in June 1995. The Ninth Circuit reviews the BIA's decision for abuse of discretion.

An Immigration Judge (IJ) can hold an in absentia deportation hearing if the alien had a reasonable opportunity to attend but failed to do so without reasonable cause, as per 8 U.S.C. 1252(b). A motion to reopen such a hearing may be granted if the alien presents reasonable cause for their absence. Urbina claimed she did not receive notice of her 1987 hearing, asserting that her family relocated without informing her of the need to report the address change. While the Board of Immigration Appeals (BIA) considered her declaration, it ultimately found that she failed to demonstrate reasonable cause, attributing her absence to her own failure to notify the IJ of her address change.

On appeal, Urbina contended that she was not informed of the requirement to report her change of address, arguing that her lack of knowledge constituted reasonable cause for missing the hearing. The INS argued that the court lacked jurisdiction over the change-of-address issue since Urbina did not raise it before the BIA. However, the court determined that Urbina had indeed raised the issue through her declaration, which the INS did not contest, thus establishing jurisdiction.

Regarding notice, it was established that notice sent by regular mail to the alien’s last provided address satisfies constitutional due process. To challenge this presumption, Urbina needed to present substantial evidence of improper delivery or nondelivery not due to her own failure to provide an address. Regulations in effect required that when an order to show cause is served, the contents must be explained, but it was unclear if this occurred in Urbina's case. Importantly, there was no record evidence indicating that she was informed of the statutory requirement to report changes of address within ten days.

Urbina claimed ignorance of the requirement to report a change of address to the government, asserting that this lack of knowledge contributed to her failure to appear for a hearing. The change-of-address requirement was not mentioned in the Order to Show Cause (OSC), and there was no evidence that an INS officer informed her of this obligation. Consequently, reasonable cause for her failure to appear is established if an alien is not notified of a hearing's time and location due to an address change and is unaware of the reporting requirement. The Board of Immigration Appeals (BIA) did not address Urbina's notification regarding the requirement, prompting a remand for further examination.

Regarding Urbina's motion to reopen her deportation case, the BIA can deny the motion on three grounds: failure to establish a prima facie case, failure to present material evidence, or a determination that the movant would not qualify for discretionary relief even if the requirements were met. For suspension of deportation, an alien must demonstrate seven years of physical presence in the U.S., good moral character, and that deportation would cause extreme hardship to themselves or immediate family members who are U.S. citizens or lawful residents.

The BIA found Urbina met the first two criteria but did not demonstrate a prima facie case of extreme hardship. Her claims of difficulties adjusting to life in Nicaragua and economic hardship were deemed insufficient, as these conditions are common among many deported individuals. Although Urbina cited fears related to her family's political history with the Somoza regime, the BIA ruled that political conditions alone do not constitute extreme hardship without additional detrimental factors. The BIA’s analysis of her claims was cursory, particularly regarding her family ties in the U.S., which merit deeper consideration as they may significantly impact her situation.

The Board of Immigration Appeals (BIA) inadequately addressed Urbina's claims regarding fears of political retaliation from the Sandinistas, failing to examine her specific allegations or the historical conflict experienced by her family. The BIA asserted that political and economic conditions are relevant but did not justify relief based on these alone. It neglected to consider Urbina's community service as a volunteer counselor for the San Francisco AIDS Foundation, which should have been given significant weight in assessing her case. Additionally, the BIA failed to evaluate the cumulative impact of Urbina's family ties, potential economic hardship, and fears of political persecution. This oversight is deemed arbitrary, warranting a remand for the BIA to properly consider these factors. On remand, the BIA is instructed to assess each relevant factor individually and cumulatively. 

The conclusion includes a dissenting opinion from Circuit Judge Rymer, who disagrees with the majority's interpretation that reasonable cause for failing to appear can arise from a lack of notice regarding the hearing, arguing it contradicts statutory obligations and precedent. Urbina did not claim that she was unaware of her duty to notify the INS of a change of address; instead, she contended she missed the hearing due to not receiving notice. Rymer asserts that the BIA addressed Urbina's actual argument appropriately, and evidence not directly related to her claims should not be considered for appeal.

Urbina's petition for review does not address the majority's decision but instead contends that she lacked reasonable assurance of understanding her deportation proceedings, as there is no evidence she was informed or provided a Spanish translation of the Order to Show Cause. The absence of evidence regarding her awareness of being placed in deportation proceedings, which was also not raised before the Board of Immigration Appeals (BIA), limits the court's jurisdiction to review or remand the case regarding her obligation to inform the Immigration and Naturalization Service (INS) of her address change. 

Moreover, even if the address issue were not waived, it is misinterpreted; the law requires aliens released on their own recognizance to notify the INS of any address changes within ten days, as per 8 U.S.C. 1305(a) and 8 C.F.R. 265.1, with no exceptions permitted. Previous rulings affirm that notice of a deportation hearing sent to the last known address satisfies due process requirements and that failure to receive such notice does not excuse nonappearance if the alien failed to provide a reachable address. The BIA's ruling that notice sent by certified mail to an alien's last known address suffices under the Act is upheld, with the presumption of adequate notice only being rebuttable by substantial evidence of nondelivery due to reasons beyond the alien's control. 

Ultimately, the fault lies with Urbina for not complying with the notification requirement, and her failure to receive notice is attributed to her own actions. The dissent argues against the majority's position, stating that the BIA should make determinations regarding reasonable cause for missed hearings, referencing established precedents.

Under the current statute, an alien must show 'exceptional circumstances' for failing to appear at a hearing to warrant rescinding an order, per 8 U.S.C. 1252b(c)(3). The statute mandates that the Order to Show Cause (OSC) must clearly state the requirement for the alien to promptly inform the Attorney General of any changes to their address or phone number, along with the consequences of failing to do so (8 U.S.C. 1252b(a)(1)(F)(i), (iii)). Previous cases cited do not support claims that lack of notification regarding the change-of-address requirement constituted reasonable cause for non-appearance. In Farhoud, the court rejected a due process claim when notices were sent to the alien's known address. In Sequeira-Solano, the notice was sent to the address of the alien's former counsel without a claim of non-receipt. Fuentes-Argueta upheld adequate notice when the INS attempted delivery to the current address but was unsuccessful. Estrada-Trochez reinforced the requirement for aliens to notify the INS of address changes but did not involve a lack of knowledge of this requirement. In Wijeratne, effective notice was established when the alien's representative received the notice. The BIA is acknowledged to have considered Urbina's hardships but did not do so explicitly, and a remand for this purpose is agreed upon.