Enrique Xoletl v. JOHN ASHCROFT, Attorney General of the United States

NOT PRECEDENTIAL
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 02-3499
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ENRIQUE XOLETL,
Petitioner
v.
JOHN ASHCROFT, Attorney General of
the United States,
Respondent
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ON APPEAL FROM THE IMMIGRATION AND NATURALIZATION SERVICE
(No. A72-797-736)
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Submitted Under Third Circuit LAR 34.1(a)
October 28, 2003
BEFORE: SCIRICA, Chief Judge, NYGAARD, and AMBRO, Circuit Judges.
(Filed : January 8, 2004 )
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OPINION OF THE COURT
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NYGAARD, Circuit Judge.
Appellant Enrique Xoletl seeks reversal of a decision by the Board of
Immigration Appeals (“BIA”), upholding a final order of removal issued by an
Immigration Judge and denying Xoletl’s petition to reopen. Although we are sympathetic
to the hardship that deportation will likely have on Xoletl and his family, this Court finds
no alternative but to uphold the decision of the BIA. We will therefore affirm.
I.
A native of Mexico, Xoletl entered the United States without inspection on
June 20, 1988, with his wife and oldest son. He has resided here continuously since this
date, and two of his children were born in the United States, and are therefore U.S.
citizens. On June 15, 1994, the former Immigration and Naturalization Service (“INS”)
issued an Order to Show Cause, charging Xoletl with deportability as an alien who
entered the United States without inspection, under 8 U.S.C. § 1251(a)(1)(B) (1994)
(current version at 8 U.S.C. § 1227(a)(1)(B) (2003)). Xoletl concedes that he received this
Order to Show Cause, which contains the following language in both English and
Spanish:
You are required to provide written notice, within five (5)
days, of any change in your address or telephone number to
the office of the Immigration Judge listed in this notice. Any
notices will be mailed only to the last address provided by

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1. The Immigration Judge found that the N otice of H earing had been sent to
Xoletl by certified mail February 6, 1995, and had been returned undeliverable on
February 9, 1995, stamped “Moved L eft No A ddress.” A.R. 40.
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you. . . .If you fail to appear at the scheduled deportation
hearing, you will be ordered deported in your absence if it is
established that you are deportable and you have been
provided the appropriate notice of this hearing.
A.R. 121 (emphasis in original).
The Order to Show Cause, which did not set a hearing date, was also delivered with a
cover sheet entitled “Important Notice,” giving the address of the Office of the
Immigration Judge and instructing Xoletl to:
Notify the Immigration Court of any changes of your address
and telephone number immediately.
Failure to provide the Court with such information may result
(sic) having your hearing held without your being there. It
may also result in an Exclusion or Deportation Order being
entered against you in your absence.
A.R. 118.
Sometime after his receipt of the Order to Show Cause, Xoletl moved, and therefore did
not receive the notice of his hearing date.1 He failed to appear for his March 23, 1995
deportation hearing and was ordered deported to Mexico in absentia, in accordance with
8 C.F.R. § 3.26 (1995) (current version at 8 C.F.R. § 1003.26 (2003)).
More than five years later, on October 29, 2001, Xoletl filed a motion to
reopen his proceedings before the immigration court, claiming that he was eligible for an
adjustment of status because his petition for an employment-based visa had been
approved. The Immigration Judge denied Xoletl’s motion as untimely pursuant to 8

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C.F.R. § 3.23(b)(1) (2001) (current version at 8 C.F.R. § 1003.23(b)(1) (2003)). In
consideration of Xoletl’s contention that he did not receive notice of his hearing date, the
Immigration Judge also treated Xoletl’s motion as a motion to rescind his in absentia
order of deportation. The judge rejected this motion as well, however, finding that
Xoletl’s explanation for his failure to appear was “unpersuasive.” A.R. 42. “It appears
that Xoletl intentionally ignored the (Order to Show Cause) for many years until he
became eligible to apply for permanent residence.” Id.
Xoletl appealed to the BIA, which affirmed the decision of the Immigration
Judge on August 15, 2002. The BIA found that Xoletl had received his Order to Show
Cause and failed to provide the immigration court with his new address when he moved.
It rejected his motion to reopen because of an adjustment of status as untimely. This
decision is now before us on appeal.
II.
Xoletl challenges a BIA decision issued after October 31, 1996, involving a case in
which deportation proceedings were initiated before April 1, 1997. As such, this Court’s
jurisdiction is controlled by the transitional rules for judicial review set forth in the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. 104-
208, § 309, 110 Stat. 3009 (codified at 8 U.S.C. § 1228). Under these rules, we have
jurisdiction to consider Xoletl’s timely petition for review. We review the BIA’s denial of
a motion to reopen for abuse of discretion. INS v. Doherty, 502 U.S. 314, 322 (1992).

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2. Although the Order to Show Cause indicates that a hearing will be scheduled to
decide if Xotetl is deportable, Xotetl apparently did not even inquire about the status of
these proceedings for five years.
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A deportation order made in absentia may be rescinded only through a motion to
reopen that demonstrates exceptional circumstances or lack of notice. 8 C.F.R. §
3.23(b)(4)(iii). Xoletl is able to demonstrate neither. The regulation in effect at the time of
Xoletl’s deportation hearing provided that “Written notice to the respondent at the most
recent address contained in the Record of Proceeding shall be considered sufficient for
purposes of this section.” 8 C.F.R. § 3.26(c) (1995) (similar provision now found at 8
C.F.R. 1003.26(d)). The hearing notice is considered properly served if it is mailed to the
last address provided by the alien – actual receipt by the alien is not required. See Faroud
v. INS, 122 F.3d 794, 796 (9th Cir. 1997).
Xotetl contends that he did not receive a hearing notice because he had moved
from the address where he received the Order to Show Cause. He concedes, however, that
he received the Order to Show Cause, along with all its attendant warnings about
providing the immigration court with a current address.2 Xoletl argues that the change-of-
address requirement was satisfied by the attorney representing him in the labor
certification process, when that attorney submitted Xoletl’s change of address to the INS.
This notification, however, was insufficient to inform the immigration court of the
change, since it is a separate and distinct government agency, and the Order to Show
Cause specifically requires that a change of address be filed with the “immigration court.”

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Xotetl’s claim that his labor certification attorney was ineffective by failing to
appropriately provide the change of address is to no avail. First, that attorney did not ever
enter an appearance on behalf of Xotetl before the immigration court, and there is nothing
in the administrative record to suggest that this attorney actually represented Xotetl in
deportation proceedings. Second, Xotetl did not raise a claim of ineffectiveness of
counsel before the BIA, and has thus failed to exhaust his administrative remedies.
Exhaustion of administrative remedies is required before this Court will exercise
jurisdiction, and therefore we may not consider Xotetl’s claim of ineffectiveness of
counsel. Bak v. INS, 682 F.2d 441, 442 (3d Cir. 1982).
Xotetl also contends in his motion to reopen that he is eligible for an adjustment of
status because since the time of his deportation hearing he has been approved for an
employment-based visa. This motion to reopen, however, was filed more than five years
after the regulatory deadline, which was 90 days after his final order of removal. 8 C.F.R.
§ 3.23 (b)(1). This Court can not find that the BIA abused its discretion in failing to
consider a claim that was filed five years too late.
III.
Xotetl has failed to show any of the requirements necessary for granting either a
motion to reopen or a motion to rescind deportation in absentia. Therefore, the BIA did
not abuse its discretion in denying these motions and upholding Xotetl’s order of
deportation.

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_________________________
TO THE CLERK:
Please file the foregoing opinion.
/s/ Richard L. Nygaard
Circuit Judge

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