Roberto Pascual-Francisco v. U.S. Attorney General

Filing

Opinion issued by court as to Petitioner Roberto Pascual-Francisco. Decision: Affirmed. Petition Denied in part, Dismissed in part. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-11381

Date Filed: 02/08/2017

Page: 1 of 5

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-11381
Non-Argument Calendar
________________________
Agency No. A070-120-678

ROBERTO PASCUAL-FRANCISCO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 8, 2017)
Before MARCUS, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Roberto Pascual-Francisco seeks review of the Board of Immigration
Appeals’ (“BIA”) final order affirming the Immigration Judge’s (“IJ”) denial of his

Case: 16-11381

Date Filed: 02/08/2017

Page: 2 of 5

motion to reopen in-absentia removal proceedings based upon lack of notice and
the BIA’s sua sponte authority. On appeal, Pascual-Francisco argues that: (1) he
never received notice of his April 1, 1994 removal hearing; (2) he did not
understand the Order to Show Cause (the “Order”), because he spoke little Spanish
or English at the time of his entry unto the United States; and (3) he is now married
to a U.S. citizen wife and has seven U.S. citizen children. After thorough review,
we deny the petition in part, and dismiss it in part.
We review the BIA’s denial of a motion to reopen for abuse of discretion.
Montano Cisneros v. U.S. Att’y Gen., 514 F.3d 1224, 1226 (11th Cir. 2008). “Our
review is limited to determining whether there has been an exercise of
administrative discretion and whether the matter of exercise has been arbitrary or
capricious.” Id. (quotation omitted).
Under former section 242B(c)(3) of the Immigration and Nationality Act
(“INA”), 1 an in-absentia deportation order may only be rescinded under three
circumstances: (1) upon a motion to reopen filed 180 days after the date of the
order of deportation, if the alien demonstrates that the failure to appear was
because of exceptional circumstances; (2) upon a motion filed at any time, if the
alien demonstrates that he did not receive proper notice; or (3) upon a motion filed
1

Although the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”) amended 8 U.S.C. § 1252b (1994), that section continues to govern in this case
because Pascual-Francisco’s proceedings commenced before IIRIRA’s effective date. See
IIRIRA § 309(c).
2

Case: 16-11381

Date Filed: 02/08/2017

Page: 3 of 5

at any time, if the alien demonstrates that he was in federal or state custody and did
not appear through no fault of the alien. 8 U.S.C. § 1252b(c)(3) (1994). Written
notice of the time and place of proceedings and of the consequences for failure to
appear must be given in person to the alien, or, if personal service is not
practicable, by certified mail.

Id. § 1252b(a)(2) (1994).

Written notice is

sufficient under § 1252b if it is sent to the most recent address provided by the
alien. Id. § 1252b(c)(1) (1994). Additionally, a notice sent to the alien’s last
known address satisfies due process. Dominguez v. U.S. Att’y Gen., 284 F.3d
1258, 1260 (11th Cir. 2002). An alien must notify the Attorney General of any
change in address within ten days. 8 U.S.C. § 1305(a).
We lack jurisdiction to consider arguments not raised before the BIA.
Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). We
also lack jurisdiction to consider the BIA’s denial of a motion to reopen based on
its sua sponte authority. Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1293-94 (11th
Cir. 2008).
Here, the BIA did not abuse its discretion in refusing to reopen his case. As
the record shows, on July 9, 1993, the Immigration and Naturalization Service
issued an Order to Show Cause, alleging that Pascual-Francisco was subject to
deportation under 8 U.S.C. § 1231(a)(1)(B), for entering the United States without
inspection.

The Order was written in English and Spanish, read to Pascual3

Case: 16-11381

Date Filed: 02/08/2017

Page: 4 of 5

Francisco in Spanish, and was personally served on Pascual-Francisco, as
evidenced by his fingerprint and signature. Pascual-Francisco provided an address
in South Carolina in the Order. The Order also explained the consequences of
failing to attend the deportation hearing, and noted that Pascual-Francisco needed
to provide written notice within five days of any change in address. Thereafter, on
October 6, 1993 and November 22, 1993, hearing notices were sent via certified
mail to Pascual-Francisco’s South Carolina address, the last notice scheduling a
hearing for April 1, 1994. The postal service returned both hearing notices to the
immigration court, checking “Attempted-Not Known” in the return to sender box.
On April 1, 1994, Pascual-Francisco failed to appear for his immigration hearing,
and the immigration judge ordered him removed in absentia.
On this record, we cannot say that the BIA abused its discretion in refusing
to reopen his case based on lack of notice. Indeed, when the immigration court
sent notices of the hearing to Pascual-Francisco’s last known address, the
requirements of § 1252b and due process were satisfied. 8 U.S.C. § 1252b(c)(1)
(1994); Dominguez, 284 F.3d at 1260. Moreover, the earlier Order that was read
to him and personally served on him explained the consequences of failing to
attend the deportation hearing, and of his statutory obligation to notify the Attorney
General of any change in address. 8 U.S.C. § 1305(a).

4

Case: 16-11381

Date Filed: 02/08/2017

Page: 5 of 5

As for Pascual-Francisco’s argument that he did not understand the Order,
we lack jurisdiction to consider it because he did not exhaust the argument before
the BIA. Amaya-Artunduaga, 463 F.3d at 1250. It is also well established that we
do not have jurisdiction to consider the BIA’s denial to reopen based upon its sua
sponte authority. Lenis, 525 F.3d at 1293-94.
PETITION DENIED IN PART, DISMISSED IN PART.

5