Walberto Orellana-Flores v. Eric Holder, Jr.
UNPUBLISHED OPINION FILED. [09-60515 Affirmed] Judge: HRD , Judge: CES , Judge: JWE. Mandate pull date is 04/04/2011 [09-60515]
Case: 09-60515 Document: 00511378034 Page: 1 Date Filed: 02/10/2011
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
February 10, 2011
Lyle W. Cayce
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A077 531 659
Before DeMOSS, STEWART, and ELROD, Circuit Judges.
Walberto Orellana-Flores, a native and citizen of El Salvador, was ordered
removed in absentia after he failed to appear for a removal hearing. More than
six years later, he filed a motion to reopen and rescind the in absentia removal
order. An immigration judge denied relief. The Board of Immigration Appeals
(BIA) affirmed, rejecting Orellana-Flores’s arguments that he had not received
notice of the hearing date due to a discrepancy in the mailing address and that
service on a minor violates due process. Orellana-Flores now petitions this court
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
Case: 09-60515 Document: 00511378034 Page: 2 Date Filed: 02/10/2011
We review the denial of a motion to reopen under a “highly deferential
abuse-of-discretion standard” and factual findings for substantial evidence.
Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009). We will not reverse
a factual finding unless the evidence compels a contrary conclusion. Id.
Orellana-Flores first contends that he did not receive the notice of hearing
because the address to which it was sent, 403 Hamilton Blvd., S. Plainfield, New
Jersey, was incorrect. He asserts that the correct address was 403-A Hamilton
Blvd. However, Orellana-Flores relies only on his counsel’s brief to the BIA, in
which counsel averred that the immigration officer who called Orellana-Flores’s
parents wrote the address down incorrectly. As the BIA correctly concluded,
counsel’s unsupported assertions are not sufficient. See INS v. Phinpathya, 464
U.S. 183, 188-89 n.6 (1984). The affidavit Orellana-Flores provided in the
proceedings further contradicts his claims. It sets forth his address as 403
Hamilton Blvd., the same address reported on the notice to appear and the
notice of hearing. Nowhere in his affidavit did Orellana-Flores aver that he did
not in fact receive the notice or that the officer wrote down the wrong address.
In addition, neither the notice of hearing nor the in absentia removal order each
mailed to 403 Hamilton was returned to the immigration court.
There is also evidence that Orellana-Flores moved at some point but no
evidence that he apprised the immigration court of his new address. This
likewise would support denial of his motion. See Gomez-Palacios, 560 F.3d at
360-61. In sum, the evidence does not compel the conclusion that OrellanaFlores did not receive notice, and the denial of his motion was not an abuse of
Orellana-Flores next contends that service on a minor violates due process.
He asserts that there is a conflict between 8 C.F.R. § 103.5a, which permits
service on minors over the age of 14, and the provisions of 8 C.F.R. § 1236.3(a),
and 8 C.F.R. § 1240.10(c), which prohibit certain actions with respect to minors
Case: 09-60515 Document: 00511378034 Page: 3 Date Filed: 02/10/2011
under 18. He also contends that due process requires notice be served on an
adult who has custody of the minor.
We question whether we have jurisdiction to entertain Orellana-Flores’s
argument regarding the purported conflict between regulations as he did not
raise that specific argument before the BIA. See Omari v. Holder, 562 F.3d 314,
321-22 (5th Cir. 2009). Even if his general assertions regarding his lack of
understanding due to his age and denial of due process due to lack of notice were
sufficient for purposes of our jurisdiction, we recently rejected materially
indistinguishable arguments, and we discern no reason not to do so here. See
Lopez-Dubon v. Holder, 609 F.3d 642, 645-46 (5th Cir. 2010).
With respect to his due process arguments, minors can be responsible for
their legal status and waive certain rights. See id. at 646. At the time the notice
of hearing was mailed to him in September 2000, Orellana-Flores was 17 years
old, just one year shy of adulthood. In addition, the notice was mailed to him at
his parents’ address. The notice informed him of the date his case was set for
hearing, of his right to be represented by counsel, and of the possibility of
removal if he failed to appear. It also provided a list of free legal services as well
as a way to contact the immigration court for information. He was also served
personally with a notice to appear when he was detained.
Given all the
circumstances, we see no due process violation.
For the foregoing reasons, the petition for review is DENIED.
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