Babubhai Patel-Ramdas v. Eric Holder, Jr.

Filing 920101230

Opinion

Case: 10-60351 Document: 00511336478 Page: 1 Date Filed: 12/30/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-60351 S u m m a r y Calendar December 30, 2010 Lyle W. Cayce Clerk

B A B U B H A I PATEL-RAMDAS, 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. A075 241 517

B e fo r e KING, BENAVIDES and ELROD, Circuit Judges. P E R CURIAM:* B a b u b h a i Patel-Ramdas (Patel), a native and citizen of India, has p e t it io n e d for review of an order of the Board of Immigration Appeals (BIA), w h ic h affirmed the decision of an immigration judge (IJ) declining to reopen P a t e l's immigration proceedings. In 1997, Patel failed to appear at his removal h e a r in g and was ordered deported in absentia. He argues now that he is entitled t o rescission of the removal order, asserting that he was not served with a notice

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

*

Case: 10-60351 Document: 00511336478 Page: 2 Date Filed: 12/30/2010 No. 10-60351 t o appear and did not receive actual notice of the date and location of the r e m o v a l hearing. B e c a u s e the BIA made its own determination and did not adopt the r e a s o n in g of the IJ, we review only the BIA's decision. See Gomez-Palacios v. H o ld e r , 560 F.3d 354, 358 (5th Cir. 2009). We review the decision to deny the m o t io n to reopen for abuse of discretion, and we will uphold the BIA's ruling as lo n g as it is not capricious, without foundation in the record, or irrational. Id. We review the BIA's factual findings for substantial evidence and will not o v e r t u r n them unless the evidence compels it. Id. T o initiate removal proceedings against an alien, the Government must s e r v e a notice to appear. 8 U.S.C. § 1229(a)(1). The alien must also be served w it h notice of changes to the time or location of the removal proceedings. § 1229(a)(2)(A). Service must be in person, or if that is not practicable, then the G o v e r n m e n t may serve the alien through the mail. § 1229(a)(1), (a)(2)(A). An a lie n who fails to attend a removal hearing after written notice has been p r o v id e d "shall be ordered removed in absentia if the [Government] establishes b y clear, unequivocal, and convincing evidence that the written notice was so p r o v id e d and that the alien is removable." 8 U.S.C. § 1229a(b)(5)(A). The IJ m a y rescind the absentia removal order if, as relevant here, the alien establishes t h a t he did not receive the required notice of the hearing. § 1229a(b)(5)(C)(ii). Patel first argues that he is entitled to rescission of the removal order, a s s e r t in g that he was not served with the notice to appear. Patel was taken into c u s t o d y shortly after crossing into the United States without inspection by im m ig r a t io n officials. While in custody, he was issued a notice to appear

c h a r g in g him with removability and outlining the consequences of failing to a p p e a r . Though the certificate of service was signed only by an immigration o ffic ia l and not Patel, Patel did sign the portion of the form requesting a prompt h e a r in g . In his brief to this court, Patel does not dispute that this signature is

2

Case: 10-60351 Document: 00511336478 Page: 3 Date Filed: 12/30/2010 No. 10-60351 h is . This signature constitutes substantial evidence supporting the BIA's

fin d in g that Patel was personally served with the notice to appear. Patel next argues that his removal proceedings should be reopened, c o n t e n d in g that he did not receive actual notice of the time and location of the r e m o v a l hearing. In determining whether rescission is appropriate, the relevant in q u ir y generally is whether the alien received the notice. See Gomez-Palacios, 5 6 0 F.3d at 360. However, an alien who does not receive notice is not entitled t o rescission if he neglected to provide the immigration court with his correct m a ilin g address. Id. When Patel was released from custody on bond, he

p r o v id e d immigration officials with a forwarding address in Lexington, K e n t u c k y . A few days after his release, the immigration court sent a hearing n o tic e to that address, but the notice was returned by the post office as u n d e liv e r a b le . Accordingly, the record supports the BIA's conclusion that Patel fa ile d to provide an updated address to immigration officials. Indeed, in his b r ie f, Patel does not explain what his correct mailing address was and does not d e s c r ib e what steps, if any, he took to notify immigration officials of his correct address. The BIA also upheld the IJ's denial of Patel's motion to reconsider. However, Patel fails to challenge this determination in his brief. Accordingly, h e has abandoned this issue. See Zhu v. Gonzales, 493 F.3d 588, 593 n.10 (5th C ir . 2007). T h e BIA's factual findings were supported by substantial evidence and it d id not abuse its discretion in upholding the IJ's order denying Patel's motion t o reopen his removal proceedings. Accordingly, Patel's petition for review is D E N IE D .

3