Abdulateef Shogunle v. Eric Holder, Jr., No. 08-1356 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1356 ABDULATEEF SHOGUNLE, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. No. 08-1765 ABDULATEEF SHOGUNLE, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petitions for Review of Orders of the Board of Immigration Appeals. Argued: May 12, 2009 Decided: Before MOTZ, GREGORY, and DUNCAN, Circuit Judges. Petitions granted by unpublished per curiam opinion. July 8, 2009 ARGUED: David Christopher Drake, JOHNSON & ASSOCIATES, PC, Arlington, Virginia, for Petitioner. Blair Timothy O Connor, UNITED STATES DEPARTMENT OF JUSTICE, Office of Immigration Litigation, Washington, D.C., for Respondent. ON BRIEF: Randall L. Johnson, JOHNSON & ASSOCIATES, PC, Arlington, Virginia, for Petitioner. Gregory G. Katsas, Assistant Attorney General, John C. Cunningham, Senior Litigation Counsel, UNITED STATES DEPARTMENT OF JUSTICE, Office of Immigration Litigation, Washington, D.C., for Respondent. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: On December 4, 2001, Abdulateef Shogunle was admitted into the United States as a non-immigrant visitor with privileges to remain until March 3, 2002. the end of this period. However, Shogunle did not depart at He subsequently married a U.S. citizen, but on October 26, 2006, the U.S. Citizenship and Immigration Services ( USCIS ) of the Department of Homeland Security ( DHS ) denied his application for adjustment of status based on his marriage. The same day, DHS personally served Shogunle with a notice to appear in removal proceedings, and he acknowledged service with his signature. The notice instructed Shogunle to appear in the Baltimore immigration court on January 3, 2007. The address on the notice was that provided by Shogunle in his application for adjustment of status. Shogunle appeared at the immigration court as directed. However, at that point, DHS had not filed the notice to appear with the immigration court; therefore, the court did not have jurisdiction over Shogunle s case. Shogunle was informed that he would receive information about a future hearing. DHS filed the notice to appear with the immigration court on January 18 or 26, 2007. * On February 1, 2007, Shogunle moved. * The notice bears two date stamps, and Immigration Appeals relied on the latter date. 3 However, prior the Board of to or immediately after his move, Shogunle notified DHS of his new address and set up mail forwarding with the U.S. Postal Service. Nevertheless, on February 13, 2007, the immigration court sent a notice to Shogunle s previous address alerting him to a hearing on April 11, 2007. Because the notice was sent to his previous address and, for reasons unknown, was not forwarded to his new address, Shogunle did not receive it. On April 11, the immigration judge noted that Shogunle had failed to appear at the hearing and issued an order Shogunle from the United States. to Shogunle s original address in to absentia remove The order was served by mail and was forwarded to his new address. The immigration judge denied Shogunle s motion to rescind the order and reopen his removal proceedings, dismissed Shogunle s appeal on February 26, 2008. denied Shogunle s petitioned this motion Court for to reconsideration, review both and the BIA The BIA also and decisions. Shogunle We have consolidated the two actions. I. Deportation and asylum hearings . . . are subject to the requirements of procedural due process. We review de novo a claim that the procedures utilized in such hearings contravened due process or the [Immigration and Nationality Act]. 4 Rusu v. INS, 296 F.3d 316, 320 (4th Cir. 2002) (internal citations and quotations (2006), omitted). failure Pursuant to appear at to a 8 U.S.C. deportation § 1229a(b)(5)(C) proceeding shall result in an order of removal that may be rescinded only if the failure to appear was the result of exceptional circumstances or the alien [proper] demonstrates notice. § 1229a(b)(5)(C), requisite that Shogunle failure notice the alien relies to on receive procedures are did the receive second proper set not part notice. forth in of The 8 U.S.C. § 1229(a)(1) (2006). Neither address to party DHS. disputes The that question Shogunle on which provided this his turns case new is whether Shogunle was also required to inform the immigration court of his change of address. The notice to appear required Shogunle to notify the Immigration Court immediately by using form EOIR-33 number whenever during the (emphasis added).) you course change of your this address or proceeding. telephone (J.A. 119 However, because DHS did not file the notice with the immigration court prior to Shogunle s original hearing, the court 8 C.F.R. proceedings did not have § 1003.14(a) before jurisdiction (2009) an on the hearing ( Jurisdiction Immigration Judge date. vests, commence, when and a charging document is filed with the Immigration Court by the Service. ). Thus, the critical 5 question is whether a proceeding had begun during which Shogunle would be required to keep the court informed of any change of address. If not, then his obligation would have been only to notify DHS of his new address, which he did. Logically, Shogunle s argument must carry the day. notice with which he was served named a hearing The date, and Shogunle showed up to court on that hearing date. However, the court did not have jurisdiction as of that date. Because the immigration court did not yet have jurisdiction, it could not order Shogunle to do anything. discretion of DHS immigration court, whether and it never have jurisdiction. which to lodge a change Indeed, it was still within the to was file the possible notice that the with court the might Therefore, the logical entity with of address would be DHS, since it controlled whether the action would even proceed any further. Granted, DHS did file the notice to appear with the immigration court prior to Shogunle s move. It is therefore arguable that Shogunle was under the jurisdiction of the immigration court at that point and thus under its change of address requirements. However, Shogunle was unaware of this development, and we cannot say that it was Shogunle s burden to keep in constant contact with the court to determine when, if ever, the court would have jurisdiction. 6 II. On the facts with which we are presented, Shogunle properly notified the government of a change in his address, and the notice of the second address was defective. hearing that was sent to his previous We hereby grant Shogunle s petitions for review, reverse the BIA, and remand this case with instructions to reopen Shogunle s removal proceedings. PETITIONS GRANTED 7
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