Filed: Jul. 08, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1356 ABDULATEEF SHOGUNLE, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. No. 08-1765 ABDULATEEF SHOGUNLE, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petitions for Review of Orders of the Board of Immigration Appeals. Argued: May 12, 2009 Decided: July 8, 2009 Before MOTZ, GREGORY, and DUNCAN, Circuit Judges. Petitions granted by unpublished per curiam opinion. ARGUED: David Chri
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1356 ABDULATEEF SHOGUNLE, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. No. 08-1765 ABDULATEEF SHOGUNLE, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petitions for Review of Orders of the Board of Immigration Appeals. Argued: May 12, 2009 Decided: July 8, 2009 Before MOTZ, GREGORY, and DUNCAN, Circuit Judges. Petitions granted by unpublished per curiam opinion. ARGUED: David Chris..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1356
ABDULATEEF SHOGUNLE,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
No. 08-1765
ABDULATEEF SHOGUNLE,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petitions for Review of Orders of the Board of Immigration
Appeals.
Argued: May 12, 2009 Decided: July 8, 2009
Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.
Petitions granted by unpublished per curiam opinion.
ARGUED: David Christopher Drake, JOHNSON & ASSOCIATES, PC,
Arlington, Virginia, for Petitioner. Blair Timothy O’Connor,
UNITED STATES DEPARTMENT OF JUSTICE, Office of Immigration
Litigation, Washington, D.C., for Respondent. ON BRIEF: Randall
L. Johnson, JOHNSON & ASSOCIATES, PC, Arlington, Virginia, for
Petitioner. Gregory G. Katsas, Assistant Attorney General, John
C. Cunningham, Senior Litigation Counsel, UNITED STATES
DEPARTMENT OF JUSTICE, Office of Immigration Litigation,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
On December 4, 2001, Abdulateef Shogunle was admitted into
the United States as a non-immigrant visitor with privileges to
remain until March 3, 2002. However, Shogunle did not depart at
the end of this period. He subsequently married a U.S. citizen,
but on October 26, 2006, the U.S. Citizenship and Immigration
Services (“USCIS”) of the Department of Homeland Security
(“DHS”) denied his application for adjustment of status based on
his marriage. The same day, DHS personally served Shogunle with
a notice to appear in removal proceedings, and he acknowledged
service with his signature. The notice instructed Shogunle to
appear in the Baltimore immigration court on January 3, 2007.
The address on the notice was that provided by Shogunle in his
application for adjustment of status.
Shogunle appeared at the immigration court as directed.
However, at that point, DHS had not filed the notice to appear
with the immigration court; therefore, the court did not have
jurisdiction over Shogunle’s case. Shogunle was informed that
he would receive information about a future hearing. DHS filed
the notice to appear with the immigration court on January 18 or
26, 2007. * On February 1, 2007, Shogunle moved. However, prior
*
The notice bears two date stamps, and the Board of
Immigration Appeals relied on the latter date.
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to or immediately after his move, Shogunle notified DHS of his
new address and set up mail forwarding with the U.S. Postal
Service. Nevertheless, on February 13, 2007, the immigration
court sent a notice to Shogunle’s previous address alerting him
to a hearing on April 11, 2007. Because the notice was sent to
his previous address and, for reasons unknown, was not forwarded
to his new address, Shogunle did not receive it. On April 11,
the immigration judge noted that Shogunle had failed to appear
at the hearing and issued an order in absentia to remove
Shogunle from the United States. The order was served by mail
to Shogunle’s original address and was forwarded to his new
address.
The immigration judge denied Shogunle’s motion to rescind
the order and reopen his removal proceedings, and the BIA
dismissed Shogunle’s appeal on February 26, 2008. The BIA also
denied Shogunle’s motion for reconsideration, and Shogunle
petitioned this Court to review both decisions. We have
consolidated the two actions.
I.
“Deportation and asylum hearings . . . are subject to the
requirements of procedural due process. We review de novo a
claim that the procedures utilized in such hearings contravened
due process or the [Immigration and Nationality Act].” Rusu v.
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INS, 296 F.3d 316, 320 (4th Cir. 2002) (internal citations and
quotations omitted). Pursuant to 8 U.S.C. § 1229a(b)(5)(C)
(2006), failure to appear at a deportation proceeding shall
result in an order of removal that may be rescinded only if the
failure to appear was the result of “exceptional circumstances”
or “the alien demonstrates that the alien did not receive
[proper] notice.” Shogunle relies on the second part of
§ 1229a(b)(5)(C), failure to receive proper notice. The
requisite notice procedures are set forth in 8 U.S.C.
§ 1229(a)(1) (2006).
Neither party disputes that Shogunle provided his new
address to DHS. The question on which this case turns is
whether Shogunle was also required to inform the immigration
court of his change of address. The notice to appear required
Shogunle to “notify the Immigration Court immediately by using
form EOIR-33 whenever you change your address or telephone
number during the course of this proceeding.” (J.A. 119
(emphasis added).) However, because DHS did not file the notice
with the immigration court prior to Shogunle’s original hearing,
the court did not have jurisdiction on the hearing date.
8 C.F.R. § 1003.14(a) (2009) (“Jurisdiction vests, and
proceedings before an Immigration Judge commence, when a
charging document is filed with the Immigration Court by the
Service.”). Thus, the critical question is whether a
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“proceeding” had begun during which Shogunle would be required
to keep the court informed of any change of address. If not,
then his obligation would have been only to notify DHS of his
new address, which he did.
Logically, Shogunle’s argument must carry the day. The
notice with which he was served named a hearing date, and
Shogunle showed up to court on that hearing date. However, the
court did not have jurisdiction as of that date. Because the
immigration court did not yet have jurisdiction, it could not
order Shogunle to do anything. Indeed, it was still within the
discretion of DHS whether to file the notice with the
immigration court, and it was possible that the court might
never have jurisdiction. Therefore, the logical entity with
which to lodge a change of address would be DHS, since it
controlled whether the action would even proceed any further.
Granted, DHS did file the notice to appear with the immigration
court prior to Shogunle’s move. It is therefore arguable that
Shogunle was under the jurisdiction of the immigration court at
that point and thus under its change of address requirements.
However, Shogunle was unaware of this development, and we cannot
say that it was Shogunle’s burden to keep in constant contact
with the court to determine when, if ever, the court would have
jurisdiction.
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II.
On the facts with which we are presented, Shogunle properly
notified the government of a change in his address, and the
notice of the second hearing that was sent to his previous
address was defective. We hereby grant Shogunle’s petitions for
review, reverse the BIA, and remand this case with instructions
to reopen Shogunle’s removal proceedings.
PETITIONS GRANTED
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