Petition for Review of a Final Decision of the Board of Immigration Appeals.
The opinion of the court was delivered by: Smith, Circuit Judge.
Before MURPHY and SMITH, Circuit Judges, and SCHREIER,*fn1
Anantkumar Baldevbhai Patel ("Mr. Patel") and his wife, Meenaben Patel ("Mrs. Patel"), natives and citizens of India, petition for review of an order of the Board of Immigration Appeals (BIA) affirming the immigration judge's (IJ) denial of their motions to reopen and rescind their in absentia orders of deportation to India. Mr. and Mrs. Patel contend that they did not receive proper notice of the deportation hearing, which the IJ held in absentia. We deny the petition.
Mr. and Mrs. Patel are natives and citizens of India who entered the United States on January 17, 1992, as nonimmigrant visitors with authorization to remain in the United States until July 16, 1992. After arriving in the United States, they filed applications for asylum with the Immigration and Naturalization Service (INS). In their applications, Mr. and Mrs. Patel listed their address as "8267 Austin Street, #316, Key Garden, New York, N.Y. 11415" ("New York address").
An asylum officer in Newark, New Jersey, referred the asylum applications to the immigration court on October 8, 1993, by preparing and issuing an "Order To Show Cause and Notice of Hearing" (OSC) against Mr. Patel. The OSC charged Mr. Patel with deportability under Immigration and Nationality Act (INA) § 241(a), 8 U.S.C. § 1251(a) (1994), as an alien who was admitted to the United States as a nonimmigrant for a temporary period but remained longer than permitted. On November 2, 1993, the INS sent the OSC via certified mail, return receipt requested, to the address that Mr. Patel provided in his asylum application-the New York address.
Mr. and Mrs. Patel's files were later transferred to the Kansas City INS office where, on August 17, 1995, an immigration agent reviewed the files and prepared a Form I-213-"Record of Deportable Alien"-for Mrs. Patel. This form indicated that Mr. and Mrs. Patel had previously filed a Form I-765-"Application for Employment Authorization"-listing their current address as "12471 Oberlin #21, St. Louis, Missouri 63146" ("St. Louis address"). The form also noted that the Newark asylum officer had denied Mr. and Mrs. Patel's applications for asylum on October 8, 1993, and that they appeared deportable under INA § 241(a), 8 U.S.C. § 1251(a) (1994).
Accordingly, on August 18, 1995, the INS re-served Mr. Patel with the OSC dated October 8, 1993, and individually served Mrs. Patel with her own OSC dated August 18, 1995, at the address that they provided in their Form I-765-the St. Louis address. The OSCs were again sent via certified mail, return receipt requested. The OSCs informed Mr. and Mrs. Patel that further notice of the date and place of their deportation hearing would be mailed to them by the immigration court at the address that they provided and contained the following language:
You are required by law to provide immediately in writing an address (and telephone number, if any) where you can be contacted. 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 are represented, notice will be sent to your representative. 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 the hearing.
The OSCs advised Mr. and Mrs. Patel that the INS would be filing the OSCs with the immigration court in Houston, Texas. They also provided them with the Houston court's address and instructed them to "report any changes of your address or telephone number in writing" to that address.
On August 30, 1995, Mr. Patel received his OSC, as evidenced by a signed return receipt. On September 9, 1995, Mrs. Patel received her OSC, also as evidenced by a signed return receipt.
On November 3, 1995, the immigration court sent two separate "Notice[s] of Hearing In Deportation Proceedings" to Mr. and Mrs. Patel via certified mail, return receipt requested, at the same address used for their OSCs -the St. Louis address. The notices of deportation proceedings informed Mr. and Mrs. Patel that they were scheduled for a hearing before an IJ on January 9, 1996. The notices also warned them that if they failed to appear for their hearing, the hearing could take place in their absence and that the IJ could enter an order of deportation against them. The notices contained the following language regarding Mr. and Mrs. Patel's obligation to update their address with the immigration court:
IF YOUR ADDRESS IS NOT LISTED ON THE ORDER TO SHOW CAUSE, OR IF IT IS NOT CORRECT, WITHIN FIVE DAYS OF THIS NOTICE YOU MUST PROVIDE TO THE OFFICE OF THE IMMIGRATION JUDGE HOUSTON, TX, WRITTEN NOTICE OF YOUR ADDRESS AND PHONE NUMBER AT WHICH YOU CAN BE CONTACTED REGARDING THESE PROCEEDINGS. IF YOU CHANGE YOUR ADDRESS, YOU MUST PROVIDE TO THE OFFICE OF THE IMMIGRATION JUDGE WRITTEN NOTICE WITHIN FIVE DAYS OF ANY CHANGE OF ADDRESS, ON FORM EOIR 33. WRITTEN NOTICE TO THE MOST RECENT ...