Patrick Osuji v. Merrick B. Garland ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-3724
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Patrick Onyebuchi Osuji
lllllllllllllllllllllPetitioner
v.
Merrick B. Garland, Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: July 26, 2021
Filed: August 4, 2021
[Unpublished]
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Before SHEPHERD, GRASZ, and STRAS, Circuit Judges.
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PER CURIAM.
Nigerian native and citizen Patrick Onyebuchi Osuji entered the United States
on a nonimmigrant visitor visa and soon thereafter married his first wife, a United
States citizen. He applied for adjustment of status based on this marriage, but the
United States Citizenship and Immigration Services (USCIS) denied his application
after his wife withdrew her concurrently filed Petition for Alien Relative. A few
months later, the Department of Homeland Security (DHS) initiated removal
proceedings by issuing a Notice to Appear (NTA) charging Osuji with removability
under 8 U.S.C. § 1227(a)(1)(B), because he remained beyond his authorization
period. The NTA warned him of the consequences of failing to appear or failing to
update his address, including possible in absentia removal. It was sent by certified
mail, return receipt requested, to the address Osuji provided to the USCIS, and the
receipt was returned signed. Soon thereafter, the immigration court separately sent
a Notice of Hearing (NOH), which provided details of his initial hearing, by regular
delivery to the same address. There is no indication in the record that the NOH was
not delivered. When Osuji failed to appear for his removal proceedings, an
immigration judge ordered him removed in absentia to Nigeria. See 8 U.S.C.
§ 1229a(b)(5)(A)–(B).
Three years later, Osuji filed a motion to reopen his removal proceedings and
rescind his in absentia removal order based on lack of notice. See id.
§ 1229a(b)(5)(C). He asserted he did not receive the NTA or NOH because he
separated from his first wife and moved out of state before they were sent, he had no
knowledge of the proceedings or his removal order, and he was eligible for
adjustment of status based on his marriage to his second wife. The immigration judge
initially granted reopening prematurely, before DHS had an opportunity to respond,
but later vacated its order and denied reopening. The BIA dismissed Osuji’s appeal.
Osuji petitions for review, arguing his motion should have been granted under Matter
of G-Y-R-, 23 I. & N. Dec. 181 (BIA 2001), and his due process rights were violated.
Having reviewed the record and the parties’ arguments, we conclude the
agency did not abuse its discretion in denying Osuji’s motion to reopen. See Kucana
v. Holder, 558 U.S. 233, 243–53 (2010) (standard of review); Diaz v. Lynch, 824 F.3d
758, 760 (8th Cir. 2016). Noncitizens have a general duty to provide prompt written
notification of an address change to the Attorney General. See 8 U.S.C.
§§ 1229(a)(1)(F), 1305(a); Sousa v. Ashcroft, 393 F.3d 271, 275 (1st Cir. 2005);
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Voloti v. U.S. Att’y Gen., 134 F. App’x 377, 378–79 (11th Cir. 2005) (unpublished)
(citing Dominguez v. U.S. Att’y Gen., 284 F.3d 1258, 1260 (11th Cir. 2002)). Even
assuming G-Y-R- is entitled to deference, an issue we do not decide here, we conclude
that Osuji’s case is distinguishable. Unlike in G-Y-R-, Osuji could be charged with
constructive notice of his NTA because DHS effectuated service by certified mail to
a written address he provided a few months–not years–before being sent his NTA,
which was not returned as undeliverable. See Qi Hu Sun v. U.S. Att’y Gen., 543 F.
App’x 987, 988–91 (11th Cir. 2013) (unpublished); Gonzalez v. U.S. Att’y Gen., 154
F. App’x 169, 173 (11th Cir. 2005) (unpublished). Osuji produced no evidence that
his first wife did not sign for the NTA. See Patel v. Holder, 652 F.3d 962, 968–970
& n.4 (8th Cir. 2011) (discussing the strong presumption of delivery by certified
mail). Accordingly, Osuji had constructive notice of his NTA and of his obligation
under § 1229(a)(1)(F) to immediately notify the Attorney General in writing of any
change in his address. Because he failed to do so, written notice of a change in the
time or place of his proceedings was therefore not required. See 8 U.S.C.
§ 1229(a)(2)(B). As a result, the agency did not abuse its discretion when it
concluded Osuji received sufficient notice of his proceedings.
After de novo review, we further conclude the immigration judge did not
violate Osuji’s rights by not offering him an opportunity to reply to DHS’s opposition
to his motion to reopen, for he made no attempt to do so. See Ramirez v. Sessions,
902 F.3d 764, 770, 772 (8th Cir. 2018) (standard of review; a noncitizen must
demonstrate both a fundamental error and prejudice to establish a due process
violation). Osuji, moreover, had no protected liberty interest in a motion to reopen
to obtain the discretionary adjustment-of-status relief he sought. See Nativi-Gomez
v. Ashcroft, 344 F.3d 805, 808 (8th Cir. 2003). Finally, to the extent Osuji suggests
the immigration judge and BIA erred by not exercising their discretionary authority
to grant reopening sua sponte, we lack jurisdiction to review this challenge absent a
colorable constitutional claim. See Tamenut v. Mukasey, 521 F.3d 1000, 1001,
1004–05 (8th Cir. 2008) (en banc).
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Accordingly, we deny the petition for review.
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