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Calle-Vujiles v. Ashcroft

March 05, 2003

EFRAIN MODESTO CALLE-VUJILES, PETITIONER
v.
JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT



On Petition for Review of an Order of The Board of Immigration Appeals (BIA No. A29-761-482)

Before: Sloviter, Rendell and Stapleton, Circuit Judges

The opinion of the court was delivered by: Stapleton, Circuit Judge

PRECEDENTIAL

Submitted Pursuant to Third Circuit LAR 34.1(a) February 4, 2003

OPINION OF THE COURT

Efrain Modesto Calle-Vujiles ("the Petitioner") petitions this court for review of the Board of Immigration Appeals' ("the BIA") decision denying the Petitioner's motion to reconsider its decision dismissing his appeal. He also petitions for review of the BIA's failure to sua sponte reopen his deportation proceedings so that he may adjust his status.

I.

The Petitioner, a citizen of Ecuador, illegally entered the United States without inspection in 1990. The INS took him into custody in 1991, interviewed him, and on his release, the INS issued the Petitioner an Order to Show Cause ("OSC"). The OSC stated that the Petitioner would be required to appear before an Immigration Judge "on the date and time to be set" in order to "show why[he] should not be deported." Addendum at 2. There is some disagreement about whether the Petitioner was informed of the OSC's contents in Spanish, the only language he understands. The Petitioner changed his place of residence between the time he was issued the OSC and the time that the Hearing Notice was sent to his address of record. The Petitioner failed to appear at the scheduled hearing and was ordered deported to Ecuador, in absentia, pursuant to the now-repealed INA S 242(b). 8 U.S.C. S 1252(b) (1988).

The Petitioner moved to reopen deportation proceedings in January, 1997, asserting lack of notice of the deportation proceeding that resulted in the in absentia order. The Immigration Judge denied the motion. On June 29, 2000, the BIA dismissed the Petitioner's appeal.

The Petitioner petitioned this court for review, asserting that he was denied due process because he did not receive adequate notice of the deportation proceeding. We denied the Petitioner's first petition for review. We noted that the Petitioner was personally served with the OSC, provided with the address of the immigration court, and the Hearing Notice was sent to his address of record. We concluded that the service of process on the Petitioner was consistent with due process and denied the petition for review. Addendum at 1-6.

On August 3, 2001, more than a year after the BIA's decision dismissing the Petitioner's appeal, the Petitioner filed a motion with the BIA asking it to reconsider the BIA's decision and to reopen the deportation proceedings. The Petitioner based his motions on the BIA decisions in In re M-S-, 22 I. & N. Dec. 349 (BIA 1998), and In re G-Y-R-, 23 I. & N. Dec. 181 (BIA 2001). The BIA denied the motions as time-barred under 8 C.F.R. S 3.2(b)-(c). The BIA also noted that the decision relied upon in the Petitioner's motion to reopen, In re M-S-, "was based on the statutory requirements of section 242B of the Immigration and Nationality Act, and is therefore inapplicable to the respondent's situation since he was ordered deported under section 242(b) of the Act rather than 242B."

The Petitioner, again, petitions this court for review of the BIA's decision. He argues, inter alia, that it was a violation of due process for the BIA to fail to exercise its discretion to sua sponte reopen the deportation proceedings or reconsider its prior decision. The INS responds, inter alia, that we are without jurisdiction to review the BIA's decision to decline to sua sponte reopen or reconsider the proceedings.

II.

Subsections 3.2(b) and (c) of Title 8 of the Code of Federal Regulations bar motions to reconsider and reopen that are not timely filed. Motions to reconsider must be filed within 30 days of the BIA decision. 8 C.F.R. S 3.2(b). Motions to reopen must be filed no later than 90 days after the date in which the final administrative decision was rendered. 8 C.F.R. S 3.2(c). Here, the BIA issued its final decision on June 29, 2000. ...


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