936 F. 2d 579 - Rodriguez-Reyes v. US Immigration and Naturalization Service

No. 90-70276.

United States Court of Appeals, Ninth Circuit.

Before FLETCHER and CANBY, Circuit Judges, and REED***, District Judge.

MEMORANDUM^***

Rodriguez-Reyes appeals from the order of the Bureau of Immigration Appeals ("BIA"), which dismissed his appeal as abandoned and moot because he failed to provide an address at which the BIA's decision on the merits could be served. We affirm, but stay the order of deportation in order to permit Rodriguez-Reyes to file a motion to reconsider or reopen before the BIA.

Rodriguez-Reyes, a 35-year-old citizen of Nicaragua, entered the United States in 1985 without inspection. In 1987, he applied for asylum, but the Immigration and Naturalization Service ("INS") denied his application. He was granted voluntary departure, but failed to leave the United States by the deadline of January 30, 1988. In response to an order to show cause why he should not be deported, Rodriguez-Reyes conceded deportability and reapplied for political asylum and withholding of deportation. 8 U.S.C. Secs. 1158(a), 1253(h). In the alternative, he sought voluntary departure under 8 U.S.C. Sec. 1254(e).

In a hearing before the Immigration Judge ("IJ") on October 5, 1988, Rodriguez-Reyes testified that he could not safely return to Nicaragua, because he feared the Sandinista government forcibly would conscript him into the military or kill him if he refused to serve. He testified that the military had forced his son out of school and into military service, and that his former employer at the Nicaraguan National Cemetery had informed him that he would be conscripted. Rodriguez-Reyes also testified that he would suffer further persecution in Nicaragua because of his efforts at obtaining asylum in the United States.

The IJ denied Rodriguez-Reyes's application for asylum and withholding of deportation on the ground that he had failed to demonstrate that he had been singled out for persecution, but granted the request for voluntary departure. Rodriguez-Reyes filed his notice of appeal with the BIA on October 11, 1988. Although he had been represented by counsel before the IJ, his notice of appeal listed only his own name and address. His counsel's name, but not counsel's address, appeared only on the certificate of service and the fee receipt. By letter dated January 24, 1990, the Executive Office of Immigration Review ("EOIR") sent to the address provided by Rodriguez-Reyes a copy of the IJ's decision, a transcript of the hearing, and a letter informing Rodriguez-Reyes of the briefing schedule and service requirements. On February 11, the letter was returned to the EOIR, stamped "RETURNED TO SENDER" and "FORWARDING ORDER EXPIRED". Handwritten on the envelope was the further notation: "Moved over a year ago! Jan 1989".

On March 5, 1990, the INS filed its appeal brief with the EOIR. Attached to the brief was a certificate of service indicating that the brief had been served by mail on both Rodriguez-Reyes and his counsel. On April 4, the EOIR sent the record of proceedings and related material to the BIA, noting that only the INS's brief had been received. The EOIR's letter included a notation that a copy of that letter was sent to Rodriguez-Reyes's attorney. On May 18, the BIA dismissed Rodriguez-Reyes' appeal "as moot as abandoned as the respondent has provided no address at which any decision on the merits can be effectively served." Rodriguez-Reyes, represented by counsel, filed a timely notice of appeal.

As a threshold matter, the INS argues that we lack jurisdiction to consider this appeal because Rodriguez-Reyes has failed to exhaust his administrative remedies, as required by 8 U.S.C. Sec. 1105a(c). "Ordinarily, an alien is required to exhaust his administrative remedies by first appealing to the BIA before petitioning to this court. This is a jurisdictional requirement." Dhangu v. INS, 812 F.2d 455, 460 (9th Cir.1987). Had Rodriguez-Reyes failed to take any appeal to the BIA, section 1105a(c) certainly would bar our review of the petition before us. See Siaba-Fernandez v. Rosenberg, 302 F.2d 139, 141 (9th Cir.1962). However, the INS has cited no case in which a court refused to review a BIA decision where, as here, the petitioner filed a notice of appeal with the BIA in a timely fashion and in compliance with INS regulations. To the contrary, we have not hesitated to review decisions of the BIA in other cases in which the BIA dismissed an appeal on the ground that the petitioner failed to file a brief. See Escobar-Ramos v. INS, 927 F.2d 482 (9th Cir.1991); Martinez-Zelaya v. INS, 841 F.2d 294 (9th Cir.1988); Reyes-Mendoza v. INS, 774 F.2d 1364 (9th Cir.1985). In these cases, as in the present case, the BIA never considered the merits of the IJ's ruling.

While we have jurisdiction to review the BIA's dismissal of Rodriguez-Reyes's appeal, the scope of review in this case is nonetheless quite limited. "This court's review of the BIA's decision is confined to the bases upon which the BIA relied." Hyun Joon Chung v. INS, 720 F.2d 1471, 1475 (9th Cir.), cert. denied, 467 U.S. 1216 (1984). We therefore limit our review to the BIA's decision to dismiss Rodriguez-Reyes's appeal and do not reach the merits of the IJ's decision.

The BIA dismissed Rodriguez-Reyes's appeal on the ground that he had failed to provide the BIA with an address where it could serve him with any decision on the merits. The record suggests that he changed his address a few months after he filed his notice of appeal, but never informed the BIA of the new address. Unfortunately, the record before ue does not reflect why the name and address of Rodriguez-Reyes's counsel were not provided on the notice of appeal to the BIA, or whether counsel's address was otherwise readily available to the BIA. On the present record, we cannot say that the BIA erred in dismissing the appeal. The BIA cannot be expected to track down a petitioner whose address has changed since the filing of the notice of appeal. The responsibility of providing the BIA with a current address lies with the petitioner and counsel. See Lee v. INS, 685 F.2d 343, 344 (9th Cir.1982).

However, Rodriguez-Reyes did not have the opportunity before the BIA to explain why he failed to provide a correct and current address. In addition, the record is ambiguous as to the role played by Rodriguez-Reyes's counsel. His counsel signed the certificate of service accompanying the notice of appeal and evidently paid the required fee, but then was conspicuously absent until he filed the notice of appeal to this court, even though the INS evidently served him with its brief before the BIA. Under these circumstances, we believe that Rodriguez-Reyes should have the opportunity to file a motion to reopen or reconsider with the BIA if there is good cause for his failure to provide a current address. See Escobar-Ramos, 927 F.2d at 486 (motion to reopen or reconsider is "proper procedure ... [to give] the BIA the opportunity to consider petitioners' explanations as to why they initially failed to file a brief with BIA").

Accordingly, we DENY the petition for review and AFFIRM the decision of the BIA. The order of deportation shall be stayed for sixty days from the filing of this memorandum to allow time for petitioner to file with the BIA a motion to reopen or reconsider. See Alvarez-Ruiz v. INS, 749 F.2d 1314, 1316 (9th Cir.1984) (staying deportation order to provide petitioner with opportunity to raise issue not previously presented to BIA by filing motion to reopen).