Ricardo Barrios v. U.S. Attorney General , 457 F. App'x 831 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEBRUARY 7, 2012
No. 11-12956
Non-Argument Calendar JOHN LEY
CLERK
________________________
Agency No. A088-314-714
RICARDO BARRIOS,
llllllllllllllllllllllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 7, 2012)
Before CARNES, WILSON and BLACK, Circuit Judges.
PER CURIAM:
Ricardo Barrios seeks review of the Board of Immigration Appeals’ (BIA)
order dismissing his appeal of the Immigration Judge’s (IJ) denial of his motion to
reopen and rescind his in absentia removal order. Barrios raises two issues on
appeal. First, he contends the BIA abused its discretion in determining he
received proper notice of his removal hearing when the Notice to Appear (NTA)
was sent to the address he provided in his asylum application. He asserts he did
not receive mail at that address, and, therefore, cannot be charged with receiving
actual or constructive notice. Second, he asserts his due process rights were
violated because neither the Government, nor the IJ, provided him with the NTA
or his asylum application, even though they referenced those documents in their
opposition brief and decision, respectively. Thus, he contends he was denied his
statutory right to examine the evidence against him. After review,1 we deny
Barrios’s petition.
I.
We review the BIA’s denial of a motion to reopen for an abuse of
discretion. Mejia Rodriguez v. Reno, 178 F.3d 1139, 1145 (11th Cir. 1999). In
the context of a motion to reopen, whether an alien received sufficient notice of
1
We review the BIA’s decision as the final judgment, unless the BIA has expressly
adopted the IJ’s decision. Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir. 2007). Because the
BIA did not expressly adopt the IJ’s decision, we review the BIA’s decision only.
2
his removal hearing is a finding of fact. See Contreras-Rodriguez v. U.S. Att’y
Gen., 462 F.3d 1314, 1317 (11th Cir. 2006) (granting petition for review and
remanding for the BIA to consider in the first instance whether petitioner received
a sufficient notice of hearing before being removed in absentia). The BIA’s
factual findings are considered “conclusive unless a reasonable factfinder would
be compelled to conclude to the contrary.” Lonyem v. U.S. Att’y Gen., 352 F.3d
1338, 1340 (11th Cir. 2003).
If an alien fails to attend a proceeding after being provided with written
notice under 8 U.S.C. § 1229(a)(1) and (2), he shall be ordered removed in
absentia if the agency establishes by “clear, unequivocal, and convincing
evidence” the written notice was properly provided and the alien is removable. 8
U.S.C. § 1229a(b)(5). The written notice is considered sufficient if provided at the
most recent address provided under 8 U.S.C. § 1229(a)(1)(F). Id. Under
§ 1229(a)(1)(F), an alien must immediately provide an address at which he may be
contacted and must immediately provide notice of any change of the alien’s
address.
The BIA did not err in determining that Barrios was provided proper notice
of his removal proceedings. Barrios asserts he was living at a residence in St.
Cloud when the NTA was sent, and the Department of Homeland Security (DHS)
3
should have known the Dundee address was incorrect because it was a Post Office
box and not a physical residence. However, he does not dispute the NTA was sent
to the most recent address he provided in writing to the DHS. In fact, he provided
this address in his asylum application only two months before the NTA was sent.
He does not contend he informed the DHS of a change in his address to St. Cloud.
Further, he fails to explain why he provided the Dundee address in his asylum
application, but later alleged that the address was never his. Therefore, the
address used by the DHS qualifies as a § 1229(a)(1)(F) address.
Since the DHS mailed the NTA to the last § 1229(a)(1)(F) address provided
by Barrios, he received sufficient notice to allow for in absentia proceedings. See
8 U.S.C. § 1229a(b)(5). Also, because Barrios did not provide a change of
address, he is precluded from claiming that he did not receive notice. See
Dominguez v. U.S. Att’y Gen., 284 F.3d 1258, 1260 (11th Cir. 2002) (“Failing to
provide the [DHS] with a change of address will preclude the alien from claiming
that the INS did not provide him or her with notice of a hearing.”). Lastly, this
case can be distinguished from In re G-Y-R-, 23 I.&.N. Dec. 181, 182 (BIA 2001),
because that case dealt with a NTA that was sent to an address provided six years
earlier and was returned by the postal service, where, here, the NTA was sent to an
address provided only two months earlier and was not returned as undeliverable.
4
Therefore, the BIA did not abuse its discretion when it dismissed Barrios's appeal
of the denial of his motion to reopen based on its conclusion that Barrios received
proper notice. Accordingly, we deny Barrios's petition with regard to his lack of
notice claim.
II.
We review constitutional due process claims de novo. Avila v. U.S. Att’y
Gen., 560 F.3d 1281, 1285 (11th Cir. 2009). To establish a due process violation,
an alien must prove he was deprived of liberty without due process of law, and the
deprivation caused him substantial prejudice. Id. Substantial prejudice occurs
when a due process violation affects the outcome of the case. Id.In removal proceedings, “the alien shall have a reasonable opportunity to
examine the evidence against the alien.” 8 U.S.C. § 1229a(b)(4)(B). Barrios had
access to his asylum application and the NTA sent to him, as they were both in the
administrative record, and, thus, Barrios had a reasonable opportunity to examine
the evidence against him. However, even if he was denied a reasonable
opportunity to examine the evidence, he has not shown that he was substantially
prejudiced by such a denial. Accordingly, Barrios’s due process rights were not
violated, and we deny his petition with regard to this claim.
PETITION DENIED.
5