Victor Osorio-Hernandez v. Loretta Lynch , 602 F. App'x 194 ( 2015 )


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  •      Case: 14-60553      Document: 00513036871         Page: 1    Date Filed: 05/08/2015
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 14-60553
    Summary Calendar
    United States Court of Appeals
    Fifth Circuit
    FILED
    May 8, 2015
    VICTOR ROMEO OSORIO-HERNANDEZ,
    Lyle W. Cayce
    Clerk
    Petitioner,
    v.
    LORETTA LYNCH, U.S. ATTORNEY GENERAL,
    Respondent.
    Petition for Review of an Order of the
    Board of Immigration Appeals
    BIA No. A098 960 132
    Before PRADO, OWEN, and GRAVES, Circuit Judges.
    PER CURIAM: *
    Victor Romeo Osorio-Hernandez, a native and citizen of Guatemala,
    seeks review of the Board of Immigration Appeals (BIA) decision dismissing
    his appeal from the immigration judge’s denial of his motion to reopen the
    removal proceedings and to rescind the order of removal entered against him
    in absentia. We review the denial of a motion to reopen under “a highly
    deferential abuse-of-discretion standard.” Gomez-Palacios v. Holder, 560 F.3d
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
    Case: 14-60553    Document: 00513036871     Page: 2   Date Filed: 05/08/2015
    No. 14-60553
    354, 358 (5th Cir. 2009). Applying the substantial evidence test, we will “not
    overturn the BIA’s factual findings unless the evidence compels a contrary
    conclusion.” Id.
    When, as here, notice has been sent to the most recent address provided,
    and it is returned to the immigration court as undeliverable, the alien must
    demonstrate that the failure to receive notice was not due to his neglect of his
    address obligation. See id. at 361. Osorio-Hernandez argues that he was not
    at fault because he did not know that his uncle provided an incorrect address.
    An alien’s address obligation is not, however, limited to initially providing his
    correct address; if the alien moves or discovers that an incorrect address has
    been provided, he has an obligation to provide the immigration court with his
    current address information. See id. Although Osorio-Hernandez argued that
    he did not discover there was “no such address” until speaking to his attorney,
    he did not explain when he learned that it was not his uncle’s address, identify
    the correct address, or assert that he had not moved. There is substantial
    evidence to support the BIA’s determination that Osorio-Hernandez did not
    sufficiently show that his failure to receive actual notice was not due to his
    neglect of the address obligation. See id. Accordingly, the BIA had a valid
    basis to deny his motion to reopen, and Osorio-Hernandez has not shown that
    the BIA abused its discretion.
    To the extent that Osorio-Hernandez argues that the BIA failed to
    address his due process argument, this issue addresses a purported legal error
    in the BIA’s decision itself, which could have been raised by filing a motion for
    reconsideration. See 
    8 C.F.R. § 1003.2
    (b). Osorio-Hernandez did not do so.
    Consequently, the failure to exhaust this claim is a jurisdictional bar to our
    review of the issue. See 
    8 U.S.C. § 1252
    (d)(1); Omari v. Holder, 
    562 F.3d 314
    ,
    320-21 (5th Cir. 2009).
    2
    Case: 14-60553   Document: 00513036871   Page: 3   Date Filed: 05/08/2015
    No. 14-60553
    Accordingly, the petition for review is DISMISSED in part for lack of
    jurisdiction and DENIED in part.
    3
    

Document Info

Docket Number: 14-60553

Citation Numbers: 602 F. App'x 194

Filed Date: 5/8/2015

Precedential Status: Non-Precedential

Modified Date: 1/13/2023