Raducu Simtion v. ALBERTO GONZALES, Attorney General of the United States

*This successive appeal has been submitted to the panel that decided the original
appeal. See Operating Procedure 6(b). After examining the briefs and the record, we have
concluded that oral argument is unnecessary. Thus, the appeal is submitted on the briefs and
the record. See Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 18, 2007*
Decided May 29, 2007
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 06-3342
RADUCU SIMTION,
Petitioner,
v.
ALBERTO GONZALES, Attorney
General of the United States,
Respondent.
Petition for Review of a Decision of
the Board of Immigration Appeals
No. A72-122-340
O R D E R
After being denied asylum, Romanian-native Raducu Simtion sought to
adjust his immigration status based on his marriage to a lawful permanent
resident. He failed, however, to attend his adjustment-of-status hearing and was
ordered deported in absentia. He attempted to rescind the in absentia order by
motioning to reopen his proceedings, but he failed to attend the motion hearing.
Thus, the motion to reopen was denied. Four years later, Simtion tried again: he
filed a second motion to reopen, in which he argued that he did not receive notice of
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 06-3342 Page 2
the motion hearing. He now petitions for review of the Board of Immigration
Appeals’ denial of that motion. We deny the petition.
Simtion entered the United States in 1992 as a nonimmigrant visitor for
pleasure. He overstayed his visa and in early 1993 he applied for asylum. In April
1995 an Immigration Judge denied his asylum application and granted him
voluntary departure. Simtion appealed the IJ’s decision to the BIA.
While his appeal was pending, Simtion filed with the BIA a motion to
remand, which was granted, asserting that he was eligible to adjust his status
based on his marriage to a lawful permanent resident. In March 1998 the
Immigration Court sent Simtion’s counsel written notice that his adjustment-of-
status hearing would take place on December 10, 1998. Simtion, however, failed to
appear at the hearing and the IJ ordered him deported in absentia.
In March 1999 Simtion filed a motion with the BIA to rescind the in absentia
order and reopen his proceedings. The BIA “returned” the case to the IJ to
adjudicate this motion. The Immigration Court again sent Simtion’s counsel notice,
in June 1999, of the date and time of the motion hearing, September 23, 1999 at
9:00 am, and the consequences of failing to appear. Although Simtion’s attorney,
wife, and children attended the hearing, Simtion again was not present. His
attorney informed the IJ that he had told Simtion’s wife the court date “some time
before Labor Day” and he was thus “at a loss for words” as to why Simtion did not
attend. The IJ orally denied Simtion’s motion to reopen, and the BIA upheld that
decision in an August 2002 order. The BIA found “no basis for remanding this case
a third time.” The BIA, in the same order, also upheld the dismissal of Simtion’s
asylum claim.
Simtion’s sole response to this order was to file a motion to reopen based on
“changed country conditions” so that he could again apply for asylum. The BIA
denied the motion, and we denied Simtion’s petition for review of that decision. See
Simtion v. Ashcroft, 393 F.3d 733 (7th Cir. 2004).
Then, in March 2006—six years after he failed to attend the September 1999
motion hearing—Simtion, through new counsel, filed with the BIA a second motion
to reopen his proceedings to apply for adjustment of status. In this motion, Simtion
argued that he never received notice of the September 1999 hearing and he was
thus, according to section 242B of the former Immigration and Nationality Act,
entitled to have his proceedings reopened despite the extensive amount of time that
had elapsed. See 8 U.S.C. § 1252b(c)(3)(B). Contrary to former counsel’s
explanation to the IJ, Simtion’s wife averred that counsel failed to notify her
(Simtion does not speak English) about the hearing until the evening before it was
scheduled to take place. She went on to explain that with such short notice,

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No. 06-3342 Page 3
Simtion could not attend the hearing because he was a long haul truck driver who
was driving a truck in Pennsylvania that night. (According to Simtion’s wife, she
and her family had frantically—but to no avail—tried to book Simtion on a flight
from Philadelphia to Chicago.) Furthermore, she continued, their former attorney
never told her the consequences of failing to appear, which, as the motion set forth,
is also an element of notice that must be furnished to an alien. See 8 U.S.C.
§ 1252b(a)(2)(A)(ii).
The BIA denied the motion in an August 2006 order. The BIA concluded that
it was “undisputed” that proper notice had been received by Simtion’s former
counsel and therefore notice to Simtion had not been lacking. The BIA reasoned
that Simtion was in essence trying to present an untimely claim of “exceptional
circumstances.” See 8 U.S.C. § 1252b(c)(3)(A). Simtion petitioned for review.
We review the denial of a motion to reopen for abuse of discretion only.
Gomes v. Gonzales, 473 F.3d 746, 752 (7th Cir. 2007). We will not find that the BIA
has abused its discretion unless its decision was made without a rational
explanation or inexplicably departed from established policies. See Mungongo v.
Gonzales, 479 F.3d 531, 534 (7th Cir. 2007).
Simtion argues that the BIA abused its discretion in denying his latest
motion to reopen because he did not have notice of the September 1999
hearing—scheduled, as explained above, to determine whether there was an excuse
for his absence at the December 1998 hearing where he was ordered deported in
absentia. Simtion concedes that his former attorney received written notice—in full
compliance with the former INA—of the second hearing and that his attorney told
his wife the date and time of the hearing at least one day before it was scheduled to
take place. Nonetheless, Simtion argues that the BIA should have granted his
motion to reopen because, according to Simtion, his attorney never relayed to his
wife the consequences of failing to appear. Simtion relies on several cases in which
we explained that the relevant question in deciding this type of motion to reopen
(from an in absentia deportation order) is not whether notice was sent, but whether
it was received. See Sabir v. Gonzales, 421 F.3d 456,458-59 (7th Cir. 2005); Joshi v.
Ashcroft, 389 F.3d 732, 736 (7th Cir. 2004).
We find these cases unavailing, however, because Simtion received
notice—according to section 242B—when his counsel received notice. Subsection
(a)(2) of that provision provides that notice is received when it is delivered either to
the alien or the alien’s counsel of record. See 8 U.S.C. § 1252b(a)(2)(A). In
conjunction, the Act provides that an alien may rescind an in absentia deportation
order due to lack of notice only “if the alien demonstrates that the alien did not
receive notice in accordance with subsection (a)(2) of this section . . . .” 8 U.S.C.

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No. 06-3342 Page 4
§ 1252b(c)(3)(b) (emphasis added). Because Simtion’s counsel undisputedly
received full and proper notice, Simtion himself, then, received notice “in
accordance with subsection (a)(2).” See id.; Perviaz v. Gonzales, 405 F.3d 488, 490
(7th Cir. 2005); Scorteanu v. I.N.S., 339 F.3d 407, 412 (6th Cir. 2003); Dobrota v.
I.N.S., 311 F.3d 1206, 1211 (9th Cir. 2002); Anin v. Reno, 188 F.3d 1273, 1277 (11th
Cir. 1999) (per curiam). Thus, the BIA’s conclusion that Simtion received adequate
notice was not an abuse of its discretion. As the BIA correctly noted, the proper
recourse in his situation was to file a motion to reopen based on exceptional
circumstances, but he neglected to do so within the 180-day prescribed time limit.
See 8 U.S.C.
§ 1252b(c)(3)(A); 8 C.F.R. § 3.23(b)(4)(iii)(A); Uriostegui v. Gonzales, 415 F.3d 660,
663-64 (7th Cir. 2005).
Simtion makes much of a footnote discussing notice in the BIA’s August 2002
order. In that footnote, the BIA noted:
The record does not contain sufficient evidence to show that the
respondent was given oral and written warnings, in a language that he
understands, of the consequences of failing to appear at his hearings.
Thus, the respondent is not barred by the provisions of section 242B of
the Act from having proceedings reopened in order to apply for
adjustment of status.
Simtion reads this as a “cue” from the BIA to file the instant motion because it
would be granted. He argues that by reversing course in its August 2006 order (the
sole order now under review), the BIA has abused its discretion.
We interpret this footnote differently. The only “bar” to applying for
adjustment of status found in section 242B is that located in subsection (e), which is
also the only subsection referring to “oral” warnings; it provides that an alien who
has been order deported in absentia and who was given oral notice of the
consequences of failing to appear for his hearing may not apply for various forms of
relief—including adjustment of status—for five years. See 8 U.S.C. § 1252b(e)(1).
The BIA, it appears, simply pointed out that Simtion was not barred by this
provision. Even if we assume that this is correct, it by no means follows that he is
necessarily entitled to reopen his proceedings; he still needs to make the showing
required by section 242B(c)(3)(B). See 8 U.S.C. § 1252b(c)(3)(B); Lahmidi v. I.N.S.,
149 F.3d 1011, 1015 (9th Cir. 1998); Soniregun v. I.N.S., 1998 WL 736649, *2 (4th
Cir. Oct 19, 1998) (per curiam) (unpublished). And, as explained above, he has
failed to make that showing. In any event, it borders on disingenuous for Simtion
to contend that he was unaware of the consequences of failing to appear. This was,
after all, the second hearing that Simtion had missed. He became intimately
familiar with the consequences the first time around: he was ordered deported.

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No. 06-3342 Page 5
Simtion lastly argues that he has been denied due process. He first contends
that learning of his hearing only one day before it was going to take place failed to
allow him “a meaningful opportunity to be heard.” We have explained that “due
process requires notice reasonably calculated to provide actual notice of the
proceedings and a meaningful opportunity to be heard.” Nazarova v. I.N.S., 171
F.3d 478, 482 (7th Cir. 1999). And we review alleged denials of due process de novo.
Hussain v. Gonzales, 424 F.3d 622, 626 (7th Cir. 2005). But nothing that the IJ or
the BIA did caused Simtion not to learn of his hearing sooner—the blame for the
purported delay lies with his former counsel—and thus there can be no due process
violation. See Kuschchak v. Ashcroft, 366 F.3d 597, 603-04 (7th Cir. 2004); Garcia v.
I.N.S., 222 F.3d 1208, 1209 -10 (9th Cir. 2000) (per curiam).
Simtion also argues that his due process rights were violated because,
according to Simtion, the BIA refused to address in depth the arguments about
notice set forth in his motion. Simtion analogizes his case to Chowdhury v.
Ashcroft, 241 F.3d 848 (7th Cir. 2001), where we held that an alien’s due process
rights were violated when, in order to apply a procedural bar that would permit the
BIA to avoid reaching the merits of the alien’s claims, the BIA arbitrarily recast the
alien’s request for remand into a motion to reopen. See Chowdhury, 241 F.3d at
852-54. Simtion contends that here, similarly, the BIA concluded erroneously that
his motion was based on a claim of exceptional circumstances and was thus
untimely. But the BIA did in fact address Simtion’s contentions. Only after the
BIA determined that it was “undisputed” that Simtion’s attorney had received
statutory notice did the BIA go on to note that the motion was untimely to the
extent it raised a claim of “exceptional circumstances.”
For these reasons, Simtion’s petition for review is DENIED.

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