Rudy Diaz-Ruiz v. Eric Holder, Jr.

Filing

UNPUBLISHED OPINION FILED. [10-60132 Affirmed ] Judge: RHB , Judge: JLD , Judge: PRO Mandate pull date is 02/03/2011 [10-60132]

Rudy Diaz-Ruiz v. Ericase: 10-60132 C Holder, Jr.

Document: 00511319503 Page: 1 Date Filed: 12/13/2010

Doc. 0

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-60132 S u m m a r y Calendar December 13, 2010 Lyle W. Cayce Clerk

R U D Y ORLANDO DIAZ-RUIZ, P e titio n e r v. E R I C H. HOLDER, JR., U.S. ATTORNEY GENERAL, R espon dent

P e tit io n for Review of an Order of the B o a r d of Immigration Appeals B I A No. A076 421 470

B e fo r e BARKSDALE, DENNIS, and OWEN, Circuit Judges. P E R CURIAM:* R u d y Orlando Diaz-Ruiz, a native and citizen of Guatemala, petitions for r e v ie w of an order of the Board of Immigration Appeals (BIA), dismissing his a p p e a l from an order of the immigration judge (IJ) which denied his motion to r e o p e n removal proceedings. Diaz contends he did not receive proper notice of his r e m o v a l hearing. D ia z was ordered removed in absentia at age 14, after failing to appear at h is 1998 removal hearing. Almost 10 years after entry of removal, Diaz sought
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

Case: 10-60132 Document: 00511319503 Page: 2 Date Filed: 12/13/2010 No. 10-60132 t o reopen removal proceedings, claiming he did not properly receive notice of r e m o v a l because he: did not understand the nature of the removal process due t o his youth; was under the control of his father and it was inequitable to impute t o him his parents' knowledge of the notice to appear (NTA); and was incapable o f appearing at the hearing without his parents' assistance. He applied for a s y lu m , withholding of removal, and relief under the Convention Against T o r t u r e , stating he feared he would be tortured or killed upon return to G u a t e m a la because he would be suspected of being a CIA agent. The BIA, on de novo review, affirmed the IJ's finding that Diaz received p r o p e r notice of his removal hearing because the NTA: contained the date, time, a n d place of the scheduled hearing; was personally served on both Diaz and his fa t h e r ; and bore both of their signatures. The BIA's denial of a motion to reopen is reviewed under "a highly d e fe r e n t ia l abuse-of-discretion standard, regardless of the basis of the alien's r e q u e s t for relief". Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009). In that regard, we "must affirm the BIA's decision as long as it is not capricious, w it h o u t foundation in the evidence, or otherwise so irrational that it is arbitrary r a t h e r than the result of any perceptible rational approach". Id. "The BIA's fa c t u a l findings are reviewed for substantial evidence . . . ; rulings of law, de n o v o , deferring to the BIA's interpretation of the immigration statutes." MirelesV a ld e z v. Ashcroft, 349 F.3d 213, 215 (5th Cir. 2003) (internal citations omitted). A n alien who fails to appear at a removal proceeding, after receiving w r it t e n notice, "shall be ordered removed in absentia if the [G]overnment e s t a b lis h e s by clear, unequivocal, and convincing evidence that the written n o tic e was so provided and that the alien is removable". Gomez-Palacios, 560 F .3 d at 358; 8 U.S.C. § 1229a(b)(5)(A). "[A]n in absentia removal order may be r e s c in d e d `upon a motion to reopen filed at any time if the alien demonstrates t h a t the alien did not receive notice.'" Gomez-Palacios, 560 F.3d at 358; 8 U.S.C. § 1229a(b)(5)(C)(ii). Unless there is evidence that the NTA "contains information 2

Case: 10-60132 Document: 00511319503 Page: 3 Date Filed: 12/13/2010 No. 10-60132 t h a t is incorrect or was obtained by coercion or duress", it is deemed "inherently t r u s t w o r t h y and admissible as evidence to prove alienage and deportability". Matter of Barcenas, 19 I. & N. Dec. 609, 611 (BIA 1988). A s noted, Diaz and his father were each served personally with the NTA. Their signing the NTA acknowledged both their receipt of it and its having been e x p la in e d to them orally in Spanish. Diaz does not contend that his father was n o t properly served with the NTA. Moreover, at age 14, Diaz was competent to p e r s o n a lly accept service. See Lopez-Dubon v. Holder, 609 F.3d 642, 646 (5th C ir . 2010) ("notice must be served on an adult only for aliens under 14 years of a g e " ) (emphasis added). In addition, any concerns due to his youth are cured by h is father's having also been served with the NTA. See id. at 645-47; In re G o m e z -G o m e z , 23 I. & N. Dec. 522, 524-28 (BIA 2002); see also 8 C.F.R. 1236.3. In sum, the evidence does not compel us to conclude that Diaz established his n o tic e was inadequate or the denial of the motion to reopen was arbitrary, c a p r ic io u s , or without evidentiary foundation. See Gomez-Palacios, 560 F.3d at 358. A n y other asserted basis for reopening Diaz' removal proceedings, p r e m is e d on his claim that he will likely face persecution, torture, and death if r e m o v e d to Guatemala (because he will be suspected of being a CIA operative) is abandoned: Diaz does not explain the basis for this claim or cite any record e v id e n c e for it. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003). D E N IE D .

3