From Casetext: Smarter Legal Research

Ravanales-Ramirez v. Garland

United States Court of Appeals, Ninth Circuit
Oct 24, 2022
No. 20-72265 (9th Cir. Oct. 24, 2022)

Opinion

20-72265

10-24-2022

ROBERTO PAUL RAVANALES- RAMIREZ, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.


NOT FOR PUBLICATION

Submitted October 20, 2022 [ **]Pasadena, California

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A076-705-854

Before: O'SCANNLAIN, HURWITZ, and WATFORD, Circuit Judges.

MEMORANDUM [*]

Roberto Paul Ravanales-Ramirez petitions for review of a Board of Immigration Appeals ("BIA") order dismissing his appeal from the decision of an immigration judge ("IJ") denying his motion to reopen and rescind his in absentia removal order. We deny the petition.

1. The BIA did not abuse its discretion in concluding that Ravanales-Ramirez failed to rebut the presumption that notice of his April 21, 2004, hearing was properly delivered to his last known address. This Court recognizes "a presumption that public officers, including Postal Service employees, properly discharge their duties," which extends to service of a hearing notice sent by mail. Salta v. INS, 314 F.3d 1076, 1078 (9th Cir. 2002). A weaker presumption of effective service applies when, as here, the notice is sent by regular as opposed to certified mail. Sembiring v. Gonzales, 499 F.3d 981, 986-87 (9th Cir. 2007). To determine whether a petitioner has rebutted this weaker presumption, an IJ may consider a wide range of factors, including circumstantial evidence probative of non-receipt, whether the petitioner affirmatively applied for relief and thus had a motive to appear at the hearing, and whether the petitioner exercised due diligence in seeking to rectify the failure to receive notice. Id. at 988; Matter of M-R-A-, 24 I. & N. Dec. 665, 674 (BIA 2008).

The BIA permissibly concluded that Ravanales-Ramirez did not overcome the presumption of delivery. The hearing notice and in absentia removal order were mailed to the last address Ravanales-Ramirez provided, and nothing in the record indicates that either document was returned as undeliverable. Ravanales-Ramirez did not affirmatively apply for relief; he sought to enter the United States illegally with the help of smugglers and was placed in removal proceedings only after being apprehended. Moreover, Ravanales-Ramirez made no showing that he was eligible for relief at the time of his removal proceedings in 2003 and 2004, which supports the BIA's conclusion that he had a motive not to appear. Finally, as the BIA found, Ravanales-Ramirez did not exercise due diligence: He waited three years before contacting an attorney following his stated failure to receive notice in 2003, and he waited another twelve years before taking any further action to check on the status of his proceedings. These facts, among others in the record, support the BIA's determination that Ravanales-Ramirez failed to rebut the presumption of effective service.

2. Contrary to Ravanales-Ramirez's contentions, the BIA addressed all his arguments. It permissibly concluded that he failed to establish any basis for sua sponte reopening and that equitable tolling was not appropriate because he did not "act with due diligence" in discovering some "deception, fraud, or error" which had "prevented [him] from filing." Iturribarria v. I.N.S., 321 F.3d 889, 897 (9th Cir. 2003).

PETITION FOR REVIEW DENIED.

[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

[**] The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).


Summaries of

Ravanales-Ramirez v. Garland

United States Court of Appeals, Ninth Circuit
Oct 24, 2022
No. 20-72265 (9th Cir. Oct. 24, 2022)
Case details for

Ravanales-Ramirez v. Garland

Case Details

Full title:ROBERTO PAUL RAVANALES- RAMIREZ, Petitioner, v. MERRICK B. GARLAND…

Court:United States Court of Appeals, Ninth Circuit

Date published: Oct 24, 2022

Citations

No. 20-72265 (9th Cir. Oct. 24, 2022)