Luis Arturo Zapata v. John Ashcroft, Attorney General of the United States

* Honorable Milton I. Shadur, Senior District Judge for the United States District
Court for the Northern District of Illinois, sitting by designation.
NOT PRECEDENTIAL
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-2862
LUIS ARTURO ZAPATA,
Petitioner
v.
JOHN ASHCROFT, ATTORNEY GENERAL
OF THE UNITED STATES,
Respondent
ON APPEAL FROM THE BOARD OF IMMIGRATION APPEALS
(No. A73-675-279)
Argued: March 12, 2004
BEFORE: SLOVITER and NYGAARD, Circuit Judges.
and SHADUR,* District Judge.
(Filed: April 1, 2004)
Stephen A. Lagana, Esq. (Argued)
Lagana & Associates
145 Essex Street
Lawrence MA 01840
Counsel for Petitioner

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Colette J. Winston, Esq. (Argued)
Peter D. Keisler, Esq.
David V. Bernal, Esq.
Douglas E. Ginsburg, Esq.
Lyle D. Jentzer, Esq.
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington DC 20044
Counsel for Respondent
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OPINION OF THE COURT
___________
SHADUR, District Judge.
Luis Arturo Aragon Zapata (“Zapata”) seeks review of a decision by the
Board of Immigration Appeals (“BIA”) that affirmed without opinion the decision of an
immigration judge (“IJ”) denying Zapata's motion to reopen his removal proceedings.
We conclude both that the affirmance-without-opinion procedure that the BIA used did
not violate Zapata’s due process rights and also that the BIA did not abuse its discretion
by affirming the IJ decision that denied Zapata’s motion to reopen. Accordingly, we deny
Zapata’s petition for review.
Because both parties are familiar with the long and winding path that this
case has taken to reach our doorstep, we review the facts only as necessary for our ruling.
On April 4, 1995 Zapata was personally served with an Order To Show Cause (“Order”)
regarding his claim for asylum (R. 135-39). At that time Zapata signed a form

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1 All further references to 8 C.F.R. provisions will take the form “Reg. §--,”
omitting the repetition of “8 C.F.R.”
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acknowledging both (1) that he had been served with the Order and (2) that he had
received its accompanying explanations and forms (R. 139). Among the materials Zapata
received was Form I-221, stating in relevant part (in Spanish as well as in this English
version, with emphasis in the original of both versions) (R. 138):
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 you....If you fail to appear at the scheduled
deportation hearing, you will be ordered deported in your absence if it has
been established that you are deportable and you have been provided the
appropriate notice of the hearing.
When Zapata arrived for his hearing on April 26, 1995, the IJ determined
that because the Order and other forms had not been explained to Zapata orally in his
native Spanish, service was defective and thus dismissed the entire case for lack of
jurisdiction (R. 105-11; 8 C.F.R §242.1(c) (as effective until Aug. 17, 1995)).1 But on
appeal the BIA issued a written opinion holding that the IJ should not have terminated
Zapata’s proceeding because (1) the government's obligation could be satisfied by its
policy that mandated giving Zapata bilingual written explanatory materials and (2) Zapata
had not overcome the presumption that the policy was followed in his case (R. 87-88,
133).
On remand the IJ reviewed the evidence and ordered Zapata’s removal on

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2 IIRIRA renumbered many of the Code sections applicable to Zapata’s case.
Although his action is technically controlled by the earlier system, we will use current
section numbers to refer to Code sections that were merely renumbered. Any section that
4
May 21, 1997--an order that was issued in absentia because Zapata had been sent notice
of the hearing but did not appear despite the “reasonable opportunity to be present” (R.
63). Before entry of that in absentia ruling, the government had sent three notices of an
upcoming hearing to Zapata's last known address, though it is quite clear that none
actually reached him: the first was marked “return to sender” and “unclaimed” (R. 84),
the second was signed as received by an unidentified individual who misspelled Zapata’s
name as “Sapata” (R. 73) and the third was returned to sender as “attempted not known”
(R. 68).
Zapata filed a timely motion to reopen, arguing that the in absentia
proceeding was invalid because he had not received proper notice (R. 57). That motion
was denied by an IJ on the premise that notice sent to Zapata's last known address was
sufficient because he bore the responsibility for notifying the government of any change
in that address (R. 44-45). And on May 29, 2003 an IJ representing the BIA affirmed that
denial without opinion (R. 3). Zapata then filed this petition for review.
Given the timing of this case, our jurisdiction arises under a now-repealed
provision of the Immigration and Nationality Act (8 U.S.C. §1105a (repealed)), as
amended by the transitional rules of the Illegal Immigration Reform and Immigration
Responsibility Act (“IIRIRA)2; see Sierra v. Romaine, 347 F.3d 559, 564-65 (3d Cir.

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governs Zapata’s situation but was repealed and substantively changed is referred to by its
original section number, followed by “repealed.”
3 Reg. §§3.1(e)(4)(i) and (ii) are identical in language to Reg. §§3.1(a)(7)(i) to
(iii). Because the BIA cited to the former as the authorizing regulation, this opinion will
consistently deal only with that provision.
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2003); Kalaw v. INS, 133 F.3d 1147, 1149-50 (9th Cir. 1997)). And because the BIA’s
May 29, 2003 order denying Zapata’s motion to reopen is a final agency action, it is
reviewable by this Court (Reg. §§241.1(a) and 3.1(e)(4)(B)(ii);3 Sevoian v. Ashcroft, 290
F.3d 166, 171 (3d Cir. 2002)).
Here the BIA’s final order was issued pursuant to its procedure under which
one BIA member drafts a brief order affirming the decision below without opinion (R. 1;
Reg. §3.1(e)(4)). We have plenary review as to whether the BIA’s use of that streamlined
procedure violated Zapata’s constitutional rights (Dia v. Ashcroft, 353 F.3d 228, 238 (3d
Cir. 2003)(en banc)). Dia has already held that the BIA’s adoption of the streamlining
regulations does not inherently offend an alien’s due process rights. So the question is
whether the BIA conformed to those regulations, which permit streamlined treatment if a
single BIA member has determined (Reg. §3.1(e)(4)(i)):
that the result reached in the decision under review was correct; that any
errors in the decision under review were harmless or nonmaterial; and that
(A) The issues on appeal are squarely controlled by existing Board
or federal court precedent and do not involve the application of
precedent to a novel factual situation; or
(B) The factual and legal issues raised on appeal are not so
substantial that the case warrants the issuance of a written opinion in

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4 As the government would have it, the BIA's decision to use the procedure is a
judicially unreviewable action “committed to agency discretion by law” (5 U.S.C.
§701(a)(2)) because there is no adequate standard available to evaluate that choice
(Lincoln v. Virgil, 508 U.S. 182, 190-91 (1993)). On the contrary, we hold that the
standard articulated in the regulations (informed by previous written decisions by the IJ
and BIA) affords us with a sufficiently detailed benchmark to evaluate whether the BIA
adhered to its own otherwise valid procedure.
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the case.4
Essentially Zapata contends that his situation was not an appropriate one for
employing the regulatory scheme because the underlying question as to whether the in
absentia proceeding was properly conducted raised a substantial due process question not
squarely controlled by precedent. We disagree.
Although we have plenary review over the constitutionality of the BIA’s
determination to put the streamlined procedure into action, we review the underlying
decision not to grant Zapata’s motion to reopen (and hence the eventual impact of that
decision on the choice to use the procedure) under a deferential abuse of discretion
standard (Sevoian, 290 F.3d at 173-74). And because the BIA's orders under that
procedure omit its own explanation or reasoning (Reg. §3.1(e)(4)(ii)), we must turn to the
combined reasoning of prior IJ and BIA orders to determine if the procedure was properly
applied to Zapata’s case (R. 44-45, 87-88; Alaelua v. INS, 45 F.3d 1379, 1381-82 (9th
Cir. 1995)).
On that score it may fairly be assumed that Zapata never actually received
any of the three notices that preceded his May 21, 1997 hearing. But that does not end

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our inquiry, because the relevant statute and regulation establish that written notice “shall
be considered sufficient” so long as it is sent to the address that the alien has most
recently provided to the government (8 U.S.C. §1229a(b)(5)(A); Reg. §3.26(d); Dobrota
v. INS, 311 F.3d 1206, 1211 (9th Cir. 2002)).
Obviously that proxy for actual notice can operate only where an alien has
previously been satisfactorily informed of his duty to update his address with the
government should it change (see Lahmidi v. INS, 149 F.3d 1011, 1017 (9th Cir. 1998)).
But as already noted, the initial Order that was personally served on Zapata expressly
informed him that he must notify the government immediately if his address changed and
(in boldface type) that his deportation could be ordered in absentia if he failed to appear
(R. 138; 8 U.S.C. §1229(a)(1)(F)(ii); Reg. §3.15(a)(7)). And, as the BIA held on the first
appeal, the bilingual documents given to Zapata sufficiently complied with the
government’s duty to explain that responsibility to him fully (R. 87; Reg. §§242.1(c)(as
effective until Aug. 17, 1995) and 3.15(d)(2)). Because Zapata thus had to know that he
was required to tell the government if he changed his address yet did not do so, this
scenario falls easily within the contours of the situations contemplated by existing
precedent and does not raise a new or substantial issue requiring the BIA to forgo its
streamlined procedure.
After engaging in this multi-layered review, we find it clear that the IJ did
not abuse his discretion when he determined that Zapata’s motion to reopen based on a

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lack of notice should not be granted, given his failure to inform the government of his
change of address as required. And because that determination was squarely controlled
by existing precedent and did not involve applying that precedent to a new fact situation,
the BIA’s decision to use the streamlined procedure did not, even when scrutinized under
plenary review, violate Zapata’s constitutional right to due process. We therefore deny
review of the BIA’s final order in which it denied Zapata’s motion to reopen.
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