Grullon-Garcia v. Garland ( 2023 )

Case: 22-60666 Document: 00516783498 Page: 1 Date Filed: 06/12/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-60666
Summary Calendar FILED
____________ June 12, 2023
Lyle W. Cayce
Anna Grullon-Garcia, Clerk
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A078 311 778
______________________________
Before Higginbotham, Graves, and Ho, Circuit Judges.
Per Curiam: *
Anna Grullon-Garcia, a native and citizen of the Dominican Republic,
petitions for review of a decision of the Board of Immigration Appeals (BIA)
dismissing her appeal from the immigration judge’s (IJ’s) denial of her
motion to reopen and rescind an in absentia removal order based on lack of
notice.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-60666 Document: 00516783498 Page: 2 Date Filed: 06/12/2023
No. 22-60666
Grullon-Garcia argues that she did not receive proper written notice
of her removal hearing given that her notice to appear (NTA) did not specify
a time and date for her hearing. She also challenges the BIA’s conclusion
that she forfeited the right to written notice of her removal hearing by failing
to provide a valid address where the immigration court could mail the notice.
This court reviews the BIA’s decision and considers the IJ’s decision
only to the extent it influenced the BIA. Orellana-Monson v. Holder, 685 F.3d
511, 517 (5th Cir. 2012). The BIA’s factual findings are reviewed for
substantial evidence, and its legal conclusions are reviewed de novo. Id. The
substantial evidence test “requires only that the BIA’s decision be supported
by record evidence and be substantially reasonable.” Omagah v. Ashcroft, 288
F.3d 254, 258 (5th Cir. 2002). This court will not reverse the BIA’s factual
findings unless the evidence compels a contrary conclusion. Chen v.
Gonzalez, 470 F.3d 1131, 1134 (5th Cir. 2006). “The applicant has the burden
of showing that the evidence is so compelling that no reasonable factfinder
could reach a contrary conclusion.” Id.The denial of a motion to reopen is reviewed “under a highly
deferential abuse-of-discretion standard.” Barrios-Cantarero v. Holder, 772
F.3d 1019, 1021 (5th Cir. 2014) (internal quotation marks and citation
omitted). Accordingly, this court will affirm the BIA’s decision unless it is
“capricious, irrational, utterly without foundation in the evidence, based on
legally erroneous interpretations of statutes or regulations, or based on
unexplained departures from regulations or established policies.” Id.The BIA relied on Spagnol-Bastos v. Garland, 19 F.4th 802 (5th Cir.
2021), and found that Grullon-Garcia had forfeited the right to written notice
of her removal hearing by failing to provide a valid address where notice could
be sent. Grullon-Garcia does not address Spagnol-Bastos in her brief. Instead,
she relies on Rodriguez v. Garland, 15 F.4th 351 (5th Cir. 2021), and argues
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No. 22-60666
that because her NTA failed to specify the date and time of her removal
hearing, she could not be removed in absentia. But as this court explained in
Spagnol-Bastos, Rodriguez does not apply where, as in Grullon-Garcia’s case,
the alien fails to provide the immigration court with a valid mailing address
at which to receive notice. Spagnol-Bastos, 19 F.4th at 808 n.2.
Though Grullon-Garcia claims that she provided the immigration
court with her contact information, the only evidence she presented to
support her claim is a vague assertion in her affidavit that “after [she] was
released from detention [she] did a Change of Address with the court.” Her
affidavit does not specify when she attempted to notify the immigration court
of her new address or claim that she provided this information by filing Form
EOIR-33 as the NTA instructed. Further, as the BIA noted, Grullon-
Garcia’s affidavit contains no “specific information regarding when and
where she was residing” after she was released from immigration custody.
The BIA reasonably concluded that Grullon-Garcia’s affidavit was
insufficient to establish that she did not receive notice of her removal hearing
or show that she had provided the immigration court with an address at which
she could receive notice as 8 U.S.C. § 1229(a)(1)(F)(i) requires.
See Mauricio-Benitez v. Sessions, 908 F.3d 144, 150-51 (5th Cir. 2018). The
BIA also reasonably relied on Spagnol-Bastos in determining that Grullon-
Garcia forfeited her right to written notice and did not act, arbitrarily,
capriciously, or irrationally in denying her motion to reopen and rescind her
in absentia removal order for lack of notice. See Barrios-Cantarero v. Holder,
772 F.3d 1019, 1021 (5th Cir. 2014).
The petition for review is DENIED.
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