Jose Del Cid-Laureano v. Eric Holder, Jr. , 368 F. App'x 589 ( 2010 )

Case: 09-60349 Document: 00511042987 Page: 1 Date Filed: 03/05/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 5, 2010
No. 09-60349
Summary Calendar Charles R. Fulbruge III
Clerk
JOSE NAPOLEON DEL CID-LAUREANO,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A094 772 053
Before REAVLEY, DAVIS, and HAYNES, Circuit Judges.
PER CURIAM:*
Jose Napoleon Del Cid-Laureano (Del Cid), a native and citizen of
El Salvador, was ordered removed in absentia in 2006. Although he was
personally served with a notice to appear explaining the charges against him, he
did not provide the Government or the immigration court with his address and
so did not receive a notice of the date and time of his hearing. He now petitions
for review of an order of the Board of Immigration Appeals (BIA) dismissing his
appeal of the denial of his motion to reopen his removal proceedings.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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No. 09-60349
Because the BIA expressly adopted the reasoning of the immigration judge
(IJ), we review both the IJ and BIA’s decisions. Gomez-Palacios v. Holder, 560
F.3d 354, 358 (5th Cir. 2009); Efe v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2003).
We review for abuse of discretion the BIA’s denial of a motion to reopen. Galvez-
Vergara v. Gonzales, 484 F.3d 798, 800 (5th Cir. 2007). The BIA acts within its
discretion in denying the motion unless its decision is capricious, arbitrary,
racially invidious, without foundation in the record, or irrational. Singh v.
Gonzales, 436 F.3d 484, 487 (5th Cir. 2006). We review factual findings for
substantial evidence and will uphold them unless the record compels otherwise.
Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006); Panjwani v. Gonzales, 401
F.3d 626, 632 (5th Cir. 2005).
Del Cid first argues that he was under no obligation to inform the
Government or the immigration court of his address, maintaining that an alien
cannot be compelled to provide his address until the Government notifies the
alien both of the charges against him and of the date and time of the removal
hearing. Furthermore, he contends, because he did not receive notice of the
hearing, the immigration court was without authority to order him removed in
absentia.
When an alien is served with a notice to appear, he is required to
immediately inform the Government and the immigration court of his address.
8 U.S.C. § 1229(a)(1)(F)(i),(ii); 8 C.F.R. § 1003.15(d)(1). Del Cid was given ample
notice of this duty. The notice to appear informed him that he was obligated to
provide an address, explained that if he failed to provide an address he was not
entitled to receive notice of the date and time of his removal hearing, and
advised him of the consequences of failing to appear at that hearing.
Furthermore, he was advised in Spanish of the consequences of failing to appear
at the removal hearing. Because he neglected to discharge his obligation to
provide his address, he was not entitled to notice of the hearing.
§ 1229(a)(1)(F)(i); § 1229a(b)(5)(B); 8 C.F.R. § 1003.18(b). Accordingly, the IJ had
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No. 09-60349
the authority to order him removed in absentia absent proof that he received
notice of the hearing. § 1229a(b)(5)(A), (B); § 1003.18(b). An in absentia order
of removal should not be revoked where an alien’s failure to receive actual notice
of the hearing was caused by his own conduct in neglecting to discharge his
responsibility to provide his address. Gomez-Palacios, 560 F.3d at 360-61. Thus,
the BIA did not abuse its discretion in declining to reopen Del Cid’s removal
proceedings on this basis.
Del Cid next argues that the evidence compels the conclusion that he in
fact notified the immigration court of his address, but we cannot agree.
Although Del Cid presented evidence in the form of affidavits that his friend
helped him complete the required form, took it to the post office, and submitted
it on Del Cid’s behalf, the IJ and BIA found these general assertions insufficient
given that Del Cid failed to provide specific evidence identifying the address the
form was mailed to, whether sufficient postage was affixed, and whether the
form was sent via certified mail. Both the IJ and BIA noted that the
immigration court’s file did not contain the form and that the required proof of
service on the copy of the form that Del Cid submitted with his motion to reopen
was not completed. Furthermore, the IJ explained that despite Del Cid’s request
for an immediate hearing, he failed to contact the immigration court to learn
whether and when a hearing had been scheduled. These reasons were sufficient
to justify the IJ and BIA’s finding that Del Cid did not provide his address to the
Government or the immigration court, and Del Cid’s evidence does not compel
a contrary conclusion.
Finally, Del Cid argues that the immigration court or the Government
could have sent notice of the hearing to his mother’s address, which was listed
on a visa petition she filed naming Del Cid as a beneficiary. He did not raise this
argument in the BIA; thus, he has failed to exhaust it, and we cannot consider
it. Heaven v. Gonzales, 473 F.3d 167, 177 (5th Cir. 2006).
The petition for review is DENIED.
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