Deysi Cruz-Diaz v. Eric Holder, Jr.

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Deysi Cruz-Diaz v. Eric Holder, Jr.

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Case: 09-60496

Document: 00511187370

Page: 1

Date Filed: 07/28/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-60496 S u m m a r y Calendar July 28, 2010 Lyle W. Cayce Clerk

D E Y S I DALILA CRUZ-DIAZ, P e titio n e r, versu s E R I C H. HOLDER, JR., U.S. Attorney General, R esp on d en t.

P e t it io n for Review of an Order of t h e Board of Immigration Appeals N o . A075 868 046

B e fo r e DAVIS, SMITH, and DENNIS, Circuit Judges. P E R CURIAM:*

D e y s i Cruz-Diaz, a native and citizen of Honduras, petitions for review of a n order of the Board of Immigration Appeals ("BIA") affirming an order of the im m ig r a t io n judge denying her motion to reopen removal proceedings. A "highly

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Dockets.Justia.com

*

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Date Filed: 07/28/2010

d e fe r e n t ia l abuse of discretion standard" applies in reviewing the BIA's denial o f a motion to reopen. Lara v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000). We w ill affirm the BIA's decision as long as it is not capricious, without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the res u lt of any perceptible rational approach. See Singh v. Gonzalez, 436 F.3d 484, 4 8 7 (5th Cir. 2006). Although questions of law are reviewed de novo, this court " a c c o r d [s ] deference to the BIA's interpretation of immigration statutes unless th e record reveals compelling evidence that the BIA's interpretation is incorrect." Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997). The BIA's factual findings are r e v ie w e d under the substantial-evidence test, meaning that this court may not o v e r t u r n the BIA's factual findings unless the evidence compels a contrary conc lu s io n . Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994). Cruz-Diaz was ordered removed in absentia after she failed to appear for h e r removal hearing. She maintains that her motion to reopen should have been g r a n t e d , because the government failed to prove that the consequences of her fa ilu r e to appear and her obligation to provide immigration officials with a corr e c t address were explained to her in Spanish that she could understand. Those p r o v is io n s were included in a notice to appear ("NTA") that was personally s e r v e d on Cruz-Diaz when she was detained and questioned by immigration offic ia ls . At that time, she provided them with a knowingly incorrect address to w h ic h a superseding NTA containing the date and time of her hearing was m a ile d and that was later returned undeliverable. Cruz-Diaz also argues that h e r due process rights were violated because she did not receive notice of the r e m o v a l hearing and that her motion to reopen should have been granted bec a u s e she made out a prima facie case for adjustment of status based on hards h ip to her husband. According to 8 U.S.C. § 1229, an NTA must specify, inter alia, the requirem e n t that the alien must immediately provide the Attorney General with a writt e n record of an address and telephone number at which the alien may be con2

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Document: 00511187370 Page: 3 No. 09-60496

Date Filed: 07/28/2010

t a c t e d ; the requirement that the alien must provide the Attorney General immed ia t e ly with a written record of any change of his address or telephone number; t h e consequences of failure to provide address and telephone information; and t h e consequences of the failure, except under exceptional circumstances, to app e a r at such proceedings. § 1229(a)(1). The statute does not explicitly require t h a t the NTA be in any language other than English. Id. A n alien who fails to appear at a removal proceeding, "shall be ordered rem o v e d in absentia" if the government "establishes by clear, unequivocal, and c o n v in c in g evidence" that notice was provided and that the alien is removable. § 1229a(b)(5)(A). Service of notice of the time and place of a removal hearing is s u ffic ie n t if mailed to the most recent address provided by the alien. See

§ 1229a(b)(5)(A). The alien is not entitled to notice, however, if he fails to prov id e the required address information. § 1229a(b)(5)(B). An order of removal e n te r e d in absentia may be rescinded upon a motion to reopen filed at any time if the alien demonstrates that he did not receive notice of the hearing or was in fe d e r a l or state custody and the failure to appear was not his fault. § 1229a(b)(5 )(C )(ii). The record reflects that the original NTA comported with the statutory r e q u ir e m e n t s . In addition, the record shows that Cruz-Diaz received oral notice in Spanish, that she could understand, of the time and place of the hearing, in t h is case a time and place "to be calendared," as well as the consequences of her fa ilu r e to appear for the hearing and her obligation to provide a proper address. The record further indicates that Cruz-Diaz acknowledged her receipt and und e r s t a n d in g of the NTA by signature. Based on these facts, the BIA found that C r u z -D ia z understood the warnings she received. The BIA's factual finding is supported by substantial evidence in the reco r d . See Girma v. INS, 283 F.3d 664, 666 (5th Cir. 2002). Because Cruz-Diaz w a s informed of her duty to provide the immigration court with her address and fa ile d to do so, she was not entitled to notice of the removal hearing. § 1229a(b)3

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(5 )(B ). Accordingly, the BIA did not abuse its discretion in denying the motion t o reopen. See Lara, 216 F.3d at 496. C r u z -D ia z 's due process argument likewise fails. See Gomez-Palacios v. H o ld e r , 560 F.3d 354, 361 n.2 (5th Cir. 2009). Finally, the BIA has the discretion t o deny a motion to reopen even if the alien has made out a prima facie case for r e lie f, 8 C.F.R. § 1003.2(a), and, as shown above, the BIA did not abuse that d is c r e t io n . A c c o r d in g ly , the petition for review is DENIED.

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