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Taizhu Cui v. Gonzales
Citation: 205 F. App'x 870Docket: No. 04-5046-ag
Court: Court of Appeals for the Second Circuit; November 12, 2006; Federal Appellate Court
Petitioner appeals the Board of Immigration Appeals (BIA) decision affirming Immigration Judge (IJ) Philip J. Montante's denial of his motion to reopen removal proceedings, which had been ordered in absentia. The BIA's affirmation is based on the finding that a Notice of Hearing was sent to the petitioner’s last known address, which had been provided just a week prior, and was returned as undeliverable. The BIA noted that the petitioner had previously received a Notice to Appear (NTA) and had been orally informed of his requirement to provide a current address in Chinese. On appeal, the petitioner argues the BIA and IJ erred in denying his motion due to alleged defects in the notice: specifically, that the NTA did not specify the hearing's time and date, and that the translator's communication was inadequate. The court reviews the BIA's legal conclusions de novo but defers to its interpretations of ambiguous statutes unless deemed unreasonable. The court found that the BIA did not abuse its discretion in denying the motion, referencing a similar case, Maghradze v. Gonzales, where the petitioner had also received an NTA lacking specific details. The court concluded that the petitioner had adequate notice of the removal hearing and rejected his argument regarding the translator's effectiveness, noting he had not previously claimed ignorance of his duty to provide a correct address. Petitioner did not argue that issues with the translator caused him to provide an invalid address to the government. Under 8 U.S.C. § 1229(a)(1), the government only needs to provide written notice of address requirements and consequences for non-compliance. The record shows petitioner received a written Notice to Appear (NTA) and provided an address where a Notice of Hearing was attempted to be delivered. Therefore, the Board of Immigration Appeals (BIA) did not abuse its discretion in denying the motion to reopen removal proceedings. Petitioner's claim that the Immigration Judge (IJ) violated his Fifth Amendment Due Process rights is unfounded. Although the IJ incorrectly stated that the petitioner failed to file a sworn affidavit in support of his motion to reopen—contrary to 8 C.F.R. § 3.2(c)(1)—this error did not constitute a due process violation, and remanding the case would be futile as the agency would likely reach the same conclusion regarding adequate notice. The BIA's denial of the motion to reopen is upheld, and the petition for review is denied. The motion for stay of removal is also denied. A motion to reopen must be filed within 90 days of the removal order, or within 180 days if exceptional circumstances are shown. Petitioner's ineffective assistance of counsel claim was not raised in his brief to the Court, leading to its waiver. Additionally, a new jurisdictional claim regarding defective notice was raised for the first time on appeal, rendering it unexhausted and not subject to consideration.