Filed: May 27, 2005
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT MAY 27, 2005 No. 04-11480 THOMAS K. KAHN _ CLERK BIA No. A77-479-969 FANERY YUSTI-MAYOR, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. _ Petition for Review of an Order of the Board of Immigration Appeals _ (May 27, 2005) Before CARNES and COX, Circuit Judges, and STROM *, District Judge. PER CURIAM: * Honorable Lyle E. Strom, United States District Judge for the
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT MAY 27, 2005 No. 04-11480 THOMAS K. KAHN _ CLERK BIA No. A77-479-969 FANERY YUSTI-MAYOR, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. _ Petition for Review of an Order of the Board of Immigration Appeals _ (May 27, 2005) Before CARNES and COX, Circuit Judges, and STROM *, District Judge. PER CURIAM: * Honorable Lyle E. Strom, United States District Judge for the ..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 27, 2005
No. 04-11480 THOMAS K. KAHN
________________________ CLERK
BIA No. A77-479-969
FANERY YUSTI-MAYOR,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of an Order of the
Board of Immigration Appeals
_________________________
(May 27, 2005)
Before CARNES and COX, Circuit Judges, and STROM *, District Judge.
PER CURIAM:
*
Honorable Lyle E. Strom, United States District Judge for the District of Nebraska,
sitting by designation.
Fanery Yusti-Mayor petitions this Court for review of the Board of
Immigration Appeals’ decision denying her motion to reopen her removal
proceedings. Because we conclude that the BIA’s decision comported with the
applicable law and is supported by substantial evidence, we deny the petition.
I.
Yusti-Mayor is a Colombian national who entered the United States as a
nonimmigrant visitor in July of 1996. On February 4, 1999, she was personally
served in New Orleans, Louisiana with a notice to appear at a removal hearing.
After being served, she was released on her own recognizance by the INS.1 As a
condition of her release, Yusti-Mayor was required to attend all INS proceedings
against her, secure written permission from the INS before changing her place of
residence, and report to the District Director of the INS on the second Tuesday of
every month. She concedes that she was aware of those obligations. Yusti-
Mayor’s removal hearing was held on July 6, 1999. She failed to attend and was
ordered to be removed in absentia.
In 2001, Yusti-Mayor married Jorge Garcia, an American citizen. She
applied to have her immigration status adjusted to that of permanent resident.
1
After this case commenced, the Homeland Security Act of 2002, Pub. L. No. 107-296,
116 Stat. 2135, abolished the INS and transferred its functions to the newly created Department
of Homeland Security. For consistency’s sake, we will continue to refer to the agency as the
INS.
2
During an adjustment interview in July 2002, an INS examiner advised Yusti-
Mayor that a removal order had been entered against her. Because the removal
order had been issued, jurisdiction over her case remained with the Immigration
Judge.
On December 12, 2002, Yusti-Mayor filed a motion to vacate the removal
order and to reopen her immigration proceedings. She requested that the
proceedings against her be reopened because she had not received sufficient notice
of her removal hearing and because her failure to appear should be excused
because of exceptional circumstances. The Immigration Judge denied Yusti-
Mayor’s motion to reopen. The BIA affirmed and adopted the IJ’s decision.
Yusti-Mayor then petitioned this Court for review.
II.
We review the BIA’s denial of a motion to reopen removal proceedings for
abuse of discretion. Immigration & Nationalization Serv. v. Abudu, 485 U.S. 94,
104–05,
108 S. Ct. 904, 912 (1988); Gbaya v. U.S. Attorney Gen.,
342 F.3d 1219,
1220 (11th Cir. 2003) (per curiam). Generally, motions to reopen are disfavored
because “[t]here is a strong public interest in bringing litigation to a close.”
Abudu, 485 U.S. at 107, 108 S. Ct. at 913.
Procedural due process claims are reviewed de novo, Lonyem v. U.S.
Attorney Gen., 352 F.3d 1338, 1341 (11th Cir. 2003) (per curiam), as are legal
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determinations by the BIA, Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001). Factual determinations by the BIA are upheld if supported by substantial
evidence, considering the record as a whole.
Id. at 1283–84. In a case like this
where the BIA has adopted the IJ’s analysis, we review the IJ’s opinion as well as
the BIA’s decision.
Id. at 1284.
III.
Yusti-Mayor first contends that the proceedings against her should be
reopened because she did not receive sufficient notice of her removal hearing. The
Fifth Amendment’s Due Process Clause applies to immigration removal
proceedings. See, e.g., Demore v. Kim, 538 U.S. 510, 523,
123 S. Ct. 1708, 1717
(2003). Procedural due process entitles an alien facing removal to notice and an
opportunity to be heard. Resendiz-Alcaraz v. U.S. Attorney Gen.,
383 F.3d 1262,
1272 (11th Cir. 2004).2
Yusti-Mayor argues that the notice to appear she received was
constitutionally defective because it contained an incorrect Immigration Court file
number. An Immigration Court file number is an identification number assigned to
2
The parties discuss 8 U.S.C. § 1229a(b)(5)(C)(ii), which allows an alien to file a
motion to reopen “at any time if the alien demonstrates that the alien did not receive notice in
accordance with paragraph (1) or (2) of section 1229(a).” It is undisputed, however, that the
notice to appear, which was personally served on Yusti-Mayor, complied with the requirements
of 8 U.S.C. § 1229(a). Accordingly, we only address Yusti-Mayor’s constitutional claim.
4
each alien by the INS. The notice to appear served on Yusti-Mayor erroneously
listed her Immigration Court file number as A77-479-469. Her actual Immigration
Court file number is A77-479-969. Because the notice to appear was the first
document reflecting contact between Yusti-Mayor and the INS, it was the first time
she had received an Immigration Court file number.3
Yusti-Mayor asserts that this incorrect Immigration Court file number made
it impossible for her to confirm the time and date of her removal hearing, thus
rendering the notice she received constitutionally defective. Yusti-Mayor asserts
that both she and her attorney made numerous calls to the Immigration Court clerk
in Atlanta to confirm the specific time and date of her removal hearing.
According to Yusti-Mayor, each time they called, the clerk would request the
Immigration Court file number listed on her notice to appear. When they gave that
number to the clerk, the clerk would state that no hearing had been set for a case
with that Immigration Court file number.
In addition to contacting the Immigration Court clerk, Yusti-Mayor asserts
that she and her attorney called the national Immigration Court information hotline
in an attempt to confirm the specific time and date of her removal hearing. The
hotline, which is an automated system, instructs the caller to input her Immigration
3
The record contains a second, superseding notice to appear containing Yusti-Mayor’s
correct Immigration Court file number. It does not appear that Yusti-Mayor was ever served
with this second notice to appear, so we do not consider it.
5
Court file number. When Yusti-Mayor or her attorney would enter the incorrect
Immigration Court file number from the notice to appear, the automated system
would respond that no such Immigration Court file number existed.
Yusti-Mayor maintains that, despite the numerous calls she and her attorney
made to the clerk in Atlanta and the nationwide immigration hotline, she was never
able to verify the information contained in her notice to appear. Because she was
never able to confirm the time and date of her removal hearing, Yusti-Mayor’s
attorney advised her not to attempt to attend the hearing by reporting to the
Immigration Court at the time and date indicated on her notice to appear.
Yusti-Mayor acted on this advice and in absentia was ordered removed. She now
contends that the incorrect Immigration Court file number rendered the notice she
received constitutionally insufficient.
While it is unfortunate that the notice to appear served on Yusti-Mayor
contained an incorrect Immigration Court file number, this clerical error did not
render the notice she received constitutionally defective. The INS suggests that
Yusti-Mayor may have been able to use her last name, instead of her Immigration
Court file number, to confirm the time and date of her removal hearing. Moreover,
had Yusti-Mayor reported to the District Director of the INS on the second
Tuesday of every month as required by the terms of her release, she undoubtedly
would have been able to confirm the time and date of her removal hearing. Most
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importantly, the fact remains that the notice to appear served on Yusti-Mayor
contained all the information she needed to know about her removal hearing:
Yusti-Mayor concedes that the removal hearing was held at the time and date
specified on the notice to appear. Had she complied with the terms of that notice,
she would have been present at her hearing.
While it certainly would have been preferable for the notice to appear to
have contained the correct Immigration Court file number so that Yusti-Mayor
could have confirmed the time and date of her hearing, such minutia is not
encompassed by the Due Process Clause. The BIA correctly determined that
Yusti-Mayor’s constitutional rights were not violated, and it did not abuse its
discretion by denying her motion to reopen because of insufficient notice.
IV.
Yusti-Mayor contends that the incorrect Immigration Court file number was
an exceptional circumstance that prevented her from attending her removal
hearing. An alien may file a motion to reopen “within 180 days after the date of
the order of removal if the alien demonstrates that the failure to appear was
because of exceptional circumstances.” 8 U.S.C. § 1229a(b)(5)(C)(i).
This clerical error is not the type of exceptional circumstance contemplated
by the statute, which references catastrophic events “such as serious illness of the
alien or serious illness or death of the spouse, child, or parent of the alien.”
7
8 U.S.C. § 1229a(e)(1). While the incorrect Immigration Court file number
inconvenienced Yusti-Mayor by making it difficult for her to confirm the time and
date of her hearing, it is not an exceptional circumstance within the meaning of the
statute.
Moreover, a motion to reopen due to exceptional circumstances must be
filed within 180 days after the removal order is issued. See 8 U.S.C. §
1229a(b)(5)(C)(i). Yusti-Mayor waited more than three-and-a-half years to file her
motion to reopen. Therefore, the BIA did not abuse its discretion by denying her
motion to reopen due to exceptional circumstances.
PETITION DENIED.
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