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Bejar v. Ashcroft

March 19, 2003


Before: Becker, Chief Judge, Nygaard and Ambro Circuit Judges.

The opinion of the court was delivered by: Becker, Chief Judge


Submitted Under Third Circuit LAR 34.1(a) January 21, 2003


Petitioner Grace Bejar, an Ecuadorian national, petitions for review of the order of the Board of Immigration Appeals ("BIA") dismissing her claim that the Immigration and Naturalization Service ("INS") unlawfully removed her from the United States. Although she alleges ineffective assistance of counsel, lack of notice, and eligibility for cancellation of removal, we conclude that we lack jurisdiction to review these claims because Bejar failed to exhaust her administrative remedies by not appealing the in absentia removal order of the Immigration Judge within the INA's mandatory 180-day window. See 8 C.F.R. § 3.23(b)(4)(ii) (2002). The only claim over which we retain jurisdiction is her allegation that the INS illegally removed her from the United States before the end of the 30-day period during which she could appeal the INS's denial of her motion to reopen, a step which effected an automatic waiver of her right to appeal the IJ's decision. We conclude that the INA does not provide for an automatic stay of removal during this 30-day appeal period, and as Bejar failed to request such a stay, the INS acted lawfully in removing her before the period lapsed.

I. Facts and Procedural History

Bejar was admitted lawfully to the United States in 1979 as a permanent resident. In 1991, she was convicted of receiving stolen property in violation of New Jersey criminal law, and in 1992 she pled guilty to, and was convicted of, another count of receiving stolen property under New Jersey law. For this second conviction, Bejar was sentenced to 364 days in the Passaic County jail, five years probation, and fifty hours of community service. Approximately four years later, she was arrested again for one count of third-degree theft and received another 364-day jail term, of which she served three months.

In 1998, Bejar left the country and traveled to the Dominican Republic for approximately three weeks. When she returned to the United States, she sought admission as a lawful returning permanent resident. Based on her criminal convictions, however, the INS determined that she was not entitled to admission and placed her in removal proceedings, where it charged her with inadmissibility under 8 U.S.C. § 212(a)(2)(A)(i)(I) as an alien convicted of a crime of moral turpitude. From July 1998 until March 1999, Bejar's administrative case was continued six times, and she does not dispute that in each instance she received notice of the rescheduled hearing at the 59th Street address in New York City that she provided to the immigration court.

In March 1999, the immigration court terminated Bejar's removal case, concluding, based on her representations in her application for cancellation of removal, that she derived United States citizenship from her parents because they became naturalized when she was 17 years old. This conclusion was based on her representation that she was born on May 1, 1964; however, according to the sworn statement that she completed upon returning to JFK Airport from the Dominican Republic, her true birthday is May 1, 1963, and the evidence in the record strongly corroborates this prior date and the resulting implication that she was in fact 18 rather than 17 when her parents became U.S. citizens. Accordingly, on April 23, 1999, the INS moved to reopen Bejar's administrative case. The immigration court granted the agency's motion, and the administrative case was reopened on May 10, 1999.

The immigration court scheduled a hearing for Bejar on July 8, 1999, and it forwarded notice of the hearing to Bejar's counsel, who does not dispute that he received it. On July 8, 1999, however, Bejar did not appear for her hearing, and the immigration court ordered her removed in absentia. The court's order notes that Bejar previously admitted the factual allegations in the notice to appear, and that she had conceded removability. Bejar did not appeal this removal order, and in June 2001 the INS served upon her a Notice to Surrender, directing her to report for removal to Ecuador on August 14, 2001. She reported to the INS and was placed in custody.

On August 17, 2001, Bejar filed a motion to reopen her removal case. Through counsel, she claimed that while her attorney received the notice of hearing in her case set for July 8, 1999, he was unable to locate and communicate with her despite his efforts to do so by phone and letter. She explains that during the relevant time she was not living at the address she had provided to the court, although she submits that her parents were living at that address and that they reported receiving no communication from her attorney. At all events, she claims that she received no notice of her hearing before it occurred.

The immigration court denied Bejar's motion to reopen on September 17, 2001; it noted that her counsel was served with the notice of hearing, and that as a legal matter notice to the attorney constituted notice to her. See 8 U.S.C. § 1229(a)(1); In re N-K & V-S-, Int. Dec. 3312 (BIA 1997). As a factual matter, the judge observed that the allegations in Bejar's motion to reopen were not supported or corroborated by any affidavit or declaration, and that as such, they were not entitled to any evidentiary weight. (A.R. 52) (citing Matter of Ramirez-Sanchez, 17 I. & N. Dec. 503 (BIA 1980)). The IJ further noted that, so far as she had informed the court, Bejar was still residing at the same address where she had lived in 1999 when her case was reopened. Under these circumstances, the IJ concluded, her alleged failure to receive notice did not constitute a ground to reopen her case.

Significantly, as the BIA had denied Bejar's motion to reopen on September 17, 2001, she had until October 17, 2001 (one month) to appeal that denial. However, as Bejar had requested no administrative stay, the INS enforced the final removal order and returned Bejar to Ecuador on October 9, 2001, more than a week before her time to appeal lapsed. After she was deported, Bejar, through new counsel, filed an administrative appeal of the court's decision, contending that: (1) she did not receive proper service of notice of her removal hearing; and (2) it was unlawful to remove her during the time in which she could appeal the IJ's denial of her motion to reopen. In a decision dated January 31, 2002, the BIA concluded that Bejar's departure from the United States prior to taking an appeal from the IJ's decision constituted a waiver of her right to appeal, citing to 8 C.F.R. § 3.3(d). It further determined that her departure resulted in the withdrawal of her motion to reopen removal proceedings, citing to 8 C.F.R. § 3.2(d). Accordingly, the BIA returned the record to the immigration court without further action, concluding that "there [was] nothing . . . pending before [it]." (A.R. 14.)

Bejar sought reconsideration of the BIA's decision, again challenging the lawfulness of the INS's enforcement of the IJ's final removal order. On March 21, 2002, the BIA issued a decision dismissing Bejar's appeal on the ground that it "fail[ed] to meet essential statutory or regulatory requirements." (A.R. 2) (citing 8 C.F.R. § 3.1(d)(2)(i)(G)). Bejar now appeals that decision. We have jurisdiction pursuant to Section 242(a) of the Immigration and Nationality Act, 8 U.S.C. § 1252(a) (2000), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. 104-208, 110 Stat. 3009 (1996). We review for abuse of discretion ...

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