Jose Fajardo-Lazil v. Attorney General of the United States

1 Fajardo initiated these proceedings by filing a habeas corpus petition under 28
U.S.C. § 2241 in the Middle District of Pennsylvania at No. 05-cv-00506. While his
habeas petition was pending, the REAL ID Act of 2005 took effect on May 11, 2005.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-3246
________________
JOSE FAJARDO-LAZIL,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
_______________________________________
On Petition for Review of a Decision of the
Board of Immigration Appeals
(Agency No. A30 143 202)
_______________________________________
Submitted Under Third Circuit L.A.R. 34.1(a)
December 14, 2005
Before: SLOVITER, SMITH AND VAN ANTWERPEN, CIRCUIT JUDGES
(Filed December 15, 2005)
_______________________
OPINION
_______________________
PER CURIAM
Jose Fajardo-Lazil (Fajardo) petitions for review of a final order of removal issued
by the Board of Immigration Appeals (BIA). For the following reasons, we will deny his
petition for review.1

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The District Court transferred the portion of the habeas petition challenging the final
order of removal to this Court to be treated as a petition for review under Section 106(c)
of the REAL ID Act of 2005. The District Court did not transfer the portion of the habeas
petition challenging Fajardo’s continued detention. Accordingly, to the extent that
Fajardo argues that his continued detention is unlawful, we cannot consider any such
arguments in the context of the current proceedings.
2
Fajardo, a citizen of the Dominican Republic, entered the United States in 1971.
In 1993, he was convicted in Pennsylvania for delivery of cocaine and was sentenced to
15 to 36 months in prison. Based on this conviction, the Government charged Fajardo
with deportability for having been convicted of an aggravated felony and a controlled
substance offense. Fajardo conceded deportability before an Immigration Judge (IJ) and
eventually was allowed to apply for a waiver of removal under former § 212(c) of the
Immigration and Nationality Act (INA). Fajardo and his attorney appeared before the IJ
on December 27, 2000, at which time the IJ scheduled a hearing for July 25, 2001, on
Fajardo’s § 212(c) application. The IJ also sent written notice to Fajardo’s attorney of the
July 25, 2001 hearing. On June 1, 2001, the IJ allowed Fajardo’s counsel to withdraw
and again sent Fajardo written notice of the July 25, 2001 hearing. When Fajardo failed
to appear on July 25, 2001, the IJ denied § 212(c) relief and in absentia ordered him
removed to the Dominican Republic.
In June 2004, Fajardo filed a motion to reopen proceedings with the IJ. Fajardo
asserted that he did not appear at the July 25, 2001 hearing because he did not receive
proper written notice. The IJ ruled that Fajardo failed to substantiate his motion to reopen
and denied it. On appeal, the BIA explained that Fajardo failed to demonstrate lack of

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notice or exceptional circumstances to excuse his failure to appear, noted that the motion
to reopen was also untimely, and affirmed the IJ’s decision. Fajardo challenged the final
order of removal by filing a habeas petition in the District Court, which transferred the
petition to this Court to be treated as a petition for review, as described previously.
The sole question before us is whether the BIA erred in affirming the IJ’s denial of
Fajardo’s motion to reopen proceedings following the order of removal entered in
absentia. Where an alien has been ordered removed in absentia, he may file a motion to
reopen within 180 days of the final order of removal if he demonstrates “exceptional
circumstances” for his failure to appear. 8 C.F.R. § 1003.23(b)(4)(iii)(A)(1). If the alien
demonstrates that he did not receive notice of the hearing, an order of removal entered in
absentia may be rescinded upon a motion to reopen filed at any time. 8 C.F.R.
§ 1003.23(b)(4)(iii)(A)(2). Likewise, the alien may also file a motion to reopen at any
time if he demonstrates that he was in federal or state custody and that his failure to
appear was not his fault. Id.
Without question, Fajardo’s motion to reopen was filed beyond the 180-day
period. The IJ’s order denying his motion to reopen was denied in July 2001; Fajardo
filed his motion to reopen nearly three years later in June 2004. Thus, unless Fajardo
demonstrated either lack of notice or that he was in custody and failed to appear through
no fault of his own, the BIA correctly ruled that his motion was untimely.
After examining the record, we agree fully with the BIA that Fajardo failed to
demonstrate lack of notice. Written notice of the July 25, 2001 hearing was sent to

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Fajardo’s counsel of record on December 27, 2000. (A.R. 151-155.) When counsel was
permitted to withdraw in June 2001, a second written notice was sent to Fajardo at his
most recent known address. (A.R. 135-144.) These two written notices readily satisfy
the statutory notice requirements. See 8 U.S.C. § 1229(a)(1). In addition, Fajardo was
present with counsel on December 27, 2000, when the IJ orally notified him of the July
25, 2001 hearing. Under these circumstances, the BIA correctly ruled that Fajardo failed
to demonstrate lack of notice.
The remaining issue is whether Fajardo was in custody and failed to appear
through no fault of his own. We have scoured the record for evidence that Fajardo was in
custody on July 25, 2001. While the record supports Fajardo’s assertion that he has spent
time in custody, no evidence of record indicates that he was in custody on July 25, 2001.
Even if Fajardo were in custody on that date, no evidence suggests that he was prevented
from informing the IJ of his custody and his inability to attend the hearing, or otherwise
requesting alternative arrangements for the hearing on his application for § 212(c) relief.
In sum, we conclude that the BIA did not err in affirming the IJ’s decision to deny
Fajardo’s motion to reopen. Accordingly, we will deny Fajardo’s petition for review.
4

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