Sara Cruz-Paz v. Eric Holder, Jr.

Filing 511104268

Case: 09-60644

Document: 00511104268

Page: 1

Date Filed: 05/07/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-60644 S u m m a r y Calendar May 7, 2010 Lyle W. Cayce Clerk

S A R A EDILMA CRUZ-PAZ, also known as Sara Edilma Cruz Paz de Alfaro, P e titio n e r v. E R IC H. HOLDER, JR., U.S. ATTORNEY GENERAL, R e sp on d en t

P e tit io n for Review of an Order of the B o a r d of Immigration Appeals B I A No. A079 038 802

Before KING, STEWART, and HAYNES, Circuit Judges. P E R CURIAM:* S a r a Edilma Cruz-Paz (Cruz) petitions for review of the Board of I m m ig r a t io n Appeals's (BIA's) decision denying her motion to reopen her p r o c e e d in g s and rescind her 2002 order of removal, which was issued in a b s e n tia . The Respondent has moved for summary affirmance, contending that t h e issue is foreclosed by Gomez-Palacios v. Holder, 560 F.3d 354 (5th Cir. 2009). B e c a u s e the BIA adopted the immigration judge's decision without a written o p in io n , we review the immigration judge's decision, Mikhael v. INS, 115 F.3d
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
*

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2 9 9 , 302 (5th Cir. 1997), and do so for an abuse of discretion. G o m e z -P a l a c io s , 560 F.3d at 358.

See

C r u z argues that she is entitled to rescission of her removal order because s h e did not receive actual notice of the date and time of her 2002 removal h e a r in g and was not informed of her obligation to notify the immigration court o f a change of address. Cruz's Notice to Appear, however, with which she was p e r s o n a lly served, warned her in the section captioned "Failure to appear" that s h e was required to provide the Immigration and Naturalization Service with h e r mailing address and to notify the immigration court of any change in her a d d r e s s , as notices of hearing would be mailed to the address provided by her. C f. id. at 356. Additionally, Cruz received oral notice in Spanish of the

c o n s e q u e n c e s of a failure to appear. Cf. id. at 357. C r u z acknowledged that she had given immigration officials a New Mexico a d d r e s s , knowing that she intended to only briefly reside there before moving to C a l i f o r n ia . Consequently, while the record evidence supports a finding that C r u z did not receive actual notice of the hearing date, substantial evidence s u p p o r t s the immigration judge's finding that her failure to receive notice of the h e a rin g was owing to her failure to comply with her obligations to report the a d d r e s s change. An alien is not entitled to rescission of a removal order where t h e failure to receive actual notice of the time of the hearing is the result of the a lie n 's failure to comply with the obligation to keep the immigration court a p p r is e d of her current mailing address. See id. at 361. As such, GomezP a l a c io s forecloses relief. C r u z additionally argues that the immigration judge's decision denying h e r motion to reopen resulted in the denial of her due process rights. Cruz, h o w e v e r , failed to raise this due process argument in her appeal to the BIA; th e r e fo r e , the claim is unexhausted, and we lack jurisdiction to review it. See T o w n s e n d v. INS, 799 F.2d 179, 181 (5th Cir. 1986). Finally, Cruz argues that s h e is entitled to the reopening of her removal proceedings because (1) she is 2

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p e r m it t e d to enjoy the same benefits of residency as her spouse under the N ic a ra g u a n Adjustment and Central American Relief Act, and (2) she has r e s id e d in the United States for eight years and has no criminal record. The im m ig r a t io n judge, however, refused Cruz's request to exercise his discretion to r e o p e n her proceedings in the interest of justice. We lack jurisdiction to review a n immigration judge's discretionary decision declining to sua sponte reopen d e p o r ta tio n proceedings. See Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 2 4 9 -5 0 (5th Cir. 2004). P E T I T I O N DENIED IN PART; DISMISSED IN PART; MOTION FOR S U M M A R Y AFFIRMANCE GRANTED.

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