Edgardo Montes-Sanchez v. Eric Holder, Jr.
UNPUBLISHED OPINION FILED. [12-60925 Affirmed ] Judge: CDK , Judge: HRD , Judge: JEG Mandate pull date is 10/07/2013 [12-60925]
Date Filed: 08/16/2013
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
August 16, 2013
Lyle W. Cayce
EDGARDO YURANDI MONTES-SANCHEZ,
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A200 113 614
Before KING, DeMOSS, and GRAVES, Circuit Judges.
Edgardo Yurandi Montes-Sanchez, a native and citizen of El Salvador,
did not appear at his removal hearing, and an immigration judge (IJ) ordered
him removed in absentia. He now petitions this court for review of an order of
the Board of Immigration Appeals (BIA) dismissing his appeal from the
decision of the IJ denying his motion to reopen his removal proceedings. He
contends that his notice to appear did not comply with statutory 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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .
Date Filed: 08/16/2013
requirements because it informed him that if he failed to appear at his hearing
he “may” be ordered removed despite that the relevant statute provides that
an alien who fails to appear “shall” be ordered removed. Because the notice
was inadequate, he reasons, he should not have been ordered removed.
Montes-Sanchez’s notice to appear informed him that if he failed to
attend his hearing, “a removal order may be made by the [IJ] in [his] absence.”
We have rejected an alien’s argument that a notice to appear containing this
language did not properly advise him of the consequences of failing to appear.
See Gomez-Palacios v. Holder, 560 F.3d 354, 359 (5th Cir. 2009). In any event,
Montes-Sanchez has not put forward compelling evidence that the BIA’s
interpretation of the relevant statute was incorrect. See Rodriguez-Manzano
v. Holder, 666 F.3d 948, 952 (5th Cir. 2012). The notice to appear must inform
the alien of, as relevant here, the consequences of failing to appear at the
hearing. 8 U.S.C. § 1229(a)(1)(G). If an alien is served with notice but fails to
appear and “if the [Government] establishes by clear, unequivocal, and
convincing evidence that the written notice was so provided and that the alien
is removable,” then he “shall be ordered removed in absentia.” 8 U.S.C.
§ 1229a(b)(5)(A). It was accurate for the notice to appear to inform MontesSanchez that if he failed to appear, he “may” be removed because failure to
appear, by itself, was not sufficient to require removal—the Government had
to first establish that Montes-Sanchez was provided with notice and was
removable. See id.; United States v. Ramirez-Carcamo, 559 F.3d 384, 385 n.1
(5th Cir. 2009). The BIA did not abuse its discretion in dismissing MontesSanchez’s appeal. See Rodriguez-Manzano, 666 F.3d at 952. Accordingly, the
petition for review is DENIED.
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