and 10-3208 ANA AUGUSTINA RODRIGUEZ-MARTINEZ v. ATTORNEY GENERAL OF THE UNITED STATES On Petition for Review of an Order of the…

IMG-128 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 09-4611 and 10-3208
___________
ANA AUGUSTINA RODRIGUEZ-MARTINEZ,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A073-663-365 )
Immigration Judge: Honorable Eugene Pugliese
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 4, 2011
Before: SCIRICA, FISHER and ALDISERT, Circuit Judges.
(Filed: May 4, 2011 )
___________
OPINION
___________
PER CURIAM
Ana Augustina Rodriguez-Martinez petitions for review of two Board of
Immigration Appeals (BIA) decisions, one denying her motion to reopen and the other

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denying her motion for reconsideration. We consolidated and will now deny the
petitions.
I.
After entering the United States without inspection, Rodriguez-Martinez – a
Spanish-speaking citizen of Guatemala – applied for asylum on September 20, 1995.
Soon afterwards, on November 20, 1995, Rodriguez-Martinez was given an Order to
Show Cause and Notice of Hearing (OSC) while at the Asylum Office in New Jersey.
Certified Administrative Record for C.A. No. 10-3208. A.116. Written in English and
Spanish, the OSC informed Rodriguez-Martinez of the removability charges against her,
informed her of a hearing date (December 13, 1995), and contained, inter alia, a lengthy
recitation of the consequences of failing to appear. The “Certificate of Translation and
Oral Notice” indicated that the OSC was not read to Rodriguez-Martinez in Spanish. See
A.138.
Rodriguez-Martinez did not appear at the hearing. In her absence, the
Immigration Judge (IJ) determined that she had been “provided written notification of the
time, date and location of the respondent‟s deportation hearing. [She] was also provided
a written warning that failure to attend this hearing . . . would result in the issuance of an
order of deportation in the respondent‟s absence provided that deportability was
established.” She was therefore ordered deported in absentia. A.152. Despite this,
Rodriguez-Martinez did not actually leave the United States; in her own words, she

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“continued [her] life” in the country, having two U.S. citizen children and taking no
further action until 2009.1 A.117.
In February 2009, Rodriguez-Martinez filed a “Motion to Reopen and Rescind In
Absentia Deportation Proceedings,” in which she argued that she “did not understand the
meaning of the Order to Show Cause and Notice of Hearing personally served on her,” as
she could not read English and the Spanish was too technical. A.99. She requested that
the immigration court exercise its discretion to reopen proceedings, grant sua sponte
relief under 8 C.F.R. § 1003.2(c)(2), and/or reopen nunc pro tunc, but also complained
that the service of the OSC (and the in absentia proceedings resulting therefrom) violated
due process and applicable agency regulations. The IJ declined to reopen, observing that
“[t]here is no requirement that an OSC be read to a person in their [sic] native language.
The OSC was personally served and contained the Dec. 13th hearing date. This court
will not reopen sua sponte, as there are no exceptional faults in this case.” A.93.
The BIA denied her appeal. It observed that, to the extent that Rodriguez-
Martinez contended that the OSC should have been read to her in Spanish, her claim was
meritless, as there was no statutory requirement to do so. A.33. Nor did the failure to
read aloud the OSC violate applicable regulations, as “[t]he mere fact that, upon personal
service, the entire OSC was not read to the respondent does not mean that it was not
1 Rodriguez-Martinez claims to have been unaware of the deportation order,
learning of it only after consultation with an attorney in 2009. See A.117. That issue is
not before us.

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explained to [her] as required.” A.33 (quoting Matter of S-M-, 22 I. & N. Dec. 49, 51
(BIA 1998)). It also declined to grant discretionary or sua sponte relief. A.34.
Rodriguez-Martinez filed a petition for review with this Court, but also moved the
BIA to reconsider its decision. The BIA declined to do so, finding that she had
“essentially reiterate[d] the arguments she raised on appeal . . . [and has] presented no
new arguments that convince us of an error, either of law or fact, in our decision.” A.3.
Rodriguez-Martinez filed an second petition for review from this decision.
II.
We have jurisdiction under 8 U.S.C. § 1252(a), and “review the denial of a motion
to reopen a removal order entered in absentia for abuse of discretion.” Cabrera-Perez v.
Gonzales, 456 F.3d 109, 115 (3d Cir. 2006). Our review of denials of motions for
reconsideration proceeds under the same standard. Nocon v. INS, 789 F.2d 1028 (3d Cir.
1986). “Discretionary decisions of the BIA will not be disturbed unless they are found to
be „arbitrary, irrational or contrary to law.‟” Tipu v. INS, 20 F.3d 580, 582 (3d Cir.
1994) (citations omitted). Despite this deferential standard of review, we examine
constitutional claims de novo. McAllister v. Att‟y Gen., 444 F.3d 178, 185 (3d Cir.
2006). In this case, the BIA agreed with the IJ and added its own reasoning; hence, we
will review the decisions of both the IJ and BIA. See Sandie v. Att‟y Gen., 562 F.3d 246,
250 (3d Cir. 2009).
As Rodriguez-Martinez sought to reopen proceedings more than a decade after
their conclusion, to succeed she must demonstrate that she did not receive proper notice

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as set forth by statute. See 8 U.S.C. § 1229a(b)(5)(C)(ii). We will apply the regulations
and statutes that would have governed service and compliance therewith at the time the
OSC was served. Cf. Ecology Ctr., Inc. v. U.S. Forest Serv., 451 F.3d 1183, 1191-92
(10th Cir. 2006); Gatti v. Reliance Std. Life Ins. Co., 415 F.3d 978, 982 n.1 (9th Cir.
2005); Saiyid v. INS, 132 F.3d 1380, 1382 n.1 (11th Cir. 1998) (“We cite to the most
recent edition of the Code of Federal Regulations unless the cited regulation has changed
since it was applied in this case. If the regulation has changed, we cite to the version of
the Code in which the regulation as applied in this case appears.”), superseded on other
grounds as stated by Najjar v. Ashcroft, 257 F.3d 1262, 1278 (11th Cir. 2001).
III.
Rodriguez-Martinez raises a number of challenges to the agency‟s decisions,
accusing the BIA of misapplying the law, abusing its discretion, failing to comply with its
own regulations, and violating her right to due process of law.2 Underpinning all of these
arguments, however, is a conflict about notice: whether the OSC innately, or by its
service, adequately conveyed notice of the impending hearing in accordance with then-
applicable statutory mandates. See 8 U.S.C. § 1252b(c)(3)(B) (1995) (establishing that
an in absentia deportation order can be rescinded after 180 days only if prevented by lack
of notice or Federal or State custody).
2 However, she did not contest the BIA‟s denial of sua sponte relief. We would,
regardless, be without jurisdiction to address that decision. See Calle-Vujiles v. Ashcroft,
320 F.3d 472, 475 (3d Cir. 2003).

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We agree with the BIA that Rodriguez-Martinez has not shown the failure of
compliance necessary for relief. Nowhere does the 1995 version of the relevant statute
list oral explanation as a prerequisite for successful notice. See generally 8 U.S.C.
§ 1252b(a). As the OSC was in compliance with the statute, the BIA did not abuse its
discretion in finding no notice defect.
Rodriguez-Martinez also argues that the service failed to satisfy the requirements
of 8 C.F.R. § 242.1 (1995). That regulation read, in pertinent part:
Service of the order to show cause may be accomplished either by personal
service or by routine service; however, when routine service is used and the
respondent does not appear for hearing or acknowledge in writing that he
has received the order to show cause, it shall be reserved by personal
service. When personal delivery of an order to show cause is made by an
immigration officer, the contents of the order to show cause shall be
explained and the respondent shall be advised that any statement he makes
may be used against him. He shall also be advised of his right to
representation by counsel of his own choice at no expense to the
Government. He shall also be advised of the availability of free legal
services programs qualified under part 292a of this chapter and
organizations recognized pursuant to § 292.2 of this chapter, located in the
district where his deportation hearing will be held.
§ 242.1(c) (1995) (emphasis added). Rodriguez-Martinez insists that the immigration
authorities‟ failure to comply with this regulation deprived her of notice; and, moreover,
that the BIA failed to follow its own precedent applying this regulation.
As the section in question does not define “explained,” we turn to the most
significant BIA decision interpreting the requirements of that provision, which was
marshaled by the BIA‟s decision: Matter of S-M-, 22 I. & N. Dec. 49 (BIA 1998).3 In S-
3 We assume the parties‟ familiarity with this decision and will not quote it at
length.

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M-, the petitioner asserted that an asylum officer failed to explain the contents of an
OSC. The BIA observed that “the respondent has offered no evidence, beyond his own
assertions, that the Service violated 8 C.F.R. § 242.1(c),” and held that “[t]he mere fact
that, upon personal service, the entire Order to Show Cause was not read to the
respondent does not mean that it was not explained to him as required.” Id. at 51. While
in this case, the petitioner has provided an affidavit, she (somewhat strikingly) never
claims that the OSC was not explained to her; rather, she says that she found its contents
to be complex and did not understand “its meaning” until recently. A.116-17. Without
any additional material to distinguish this case from S-M-, we agree that it should control,
and the BIA thus did not abuse its discretion in finding Rodriguez-Martinez‟s proffer to
be insufficient to show violation of the regulation.4
We also do not find that the in absentia proceeding violated due process. It is
settled that aliens facing removal are entitled to due process. See e.g., Abdulai v.
Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001). Constitutional notice must clarify charges
and give a party an opportunity to marshal facts in her defense. See Wolff v. McDonnell,
418 U.S. 539, 564 (1974). Notice must be reasonably calculated to reach interested
parties, and an alien need not actually receive the notice for due process to be satisfied; a
resulting in absentia order of removal is constitutionally valid so long as the basic
requirements are met. See Popa v. Holder, 571 F.3d 890, 897-98 (9th Cir. 2009).
Moreover, “due process allows notice of a hearing (and its attendant procedures and
4 We have reviewed the other BIA cases cited by Rodriguez-Martinez, and find
none to compel a contrary result.

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consequences) to be given solely in English to a non-English speaker if the notice would
put a reasonable recipient on notice that further inquiry is required.” Nazarova v. INS,
171 F.3d 478, 483 (7th Cir. 1999). Rodriguez-Martinez has not argued that the OSC
failed to provide her with the necessary information. And the warnings in English and
Spanish – the petitioner‟s native language – were sufficient to meet due-process scrutiny.
To the extent that Rodriguez-Martinez argues that the BIA, by “dismiss[ing] [her] appeal
of the Immigration Judge‟s decision denying [her] motion to reopen, continu[ed] the
violation of [her] Fifth Amendment Right to Due Process,” Pet‟r‟s Br. 20, we have
already determined that the BIA‟s decision was not clearly in error, and there is thus no
indication of a due-process violation.
Finally, Rodriguez-Martinez argues that her motion to reopen and rescind should
be granted nunc pro tunc. While “an award of nunc pro tunc may, in an appropriate
circumstance, be granted as a means of rectifying error in immigration proceedings,”
Edwards v. INS, 393 F.3d 299, 309 (2d Cir. 2004), she has not shown an unjust
deprivation of a “significant benefit,” id. at 310, that would justify the granting of such
extraordinary relief.
As we have identified no errors in the BIA‟s reasoning, it follows that the agency
did not abuse its discretion in denying the petitioner‟s motion for reconsideration.
IV.
For the foregoing reasons, we will deny the petitions for review.

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