Celio Abarca-Orellana v. Eric Holder, Jr.

Filing

UNPUBLISHED OPINION ORDER FILED. [13-60147 Affirmed ] Judge: PRO , Judge: JWE , Judge: CH Mandate pull date is 11/01/2013; granting motion for summary affirmance filed by Respondent Mr. Eric H. Holder, Jr., U. S. Attorney General [7338408-2] [13-60147]

Case: 13-60147

Document: 00512368263

Page: 1

Date Filed: 09/10/2013

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 13-60147
Summary Calendar

September 10, 2013
Lyle W. Cayce
Clerk

CELIO ADIEL ABARCA-ORELLANA,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent

Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A070 873 617

Before OWEN, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
Celio Adiel Abarca-Orellana, a native and citizen of El Salvador, filed a
petition for review of the decision of the Board of Immigration Appeals (BIA)
dismissing his appeal of the denial of his motion to reopen his deportation
proceedings after he was ordered removed in absentia. The respondent has
moved for summary denial of Abarca-Orellana’s petition. Abarca-Orellana
opposed the motion, arguing that the order to show cause and notice of hearing

*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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was statutorily deficient because it purportedly did not comply with 8 U.S.C.
§ 1229(a)(1)(F) & (G).1
“In reviewing the denial of a motion to reopen, this court applies a highly
deferential abuse-of-discretion standard, regardless of the basis of the alien’s
request for relief.” Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009).
This court will affirm the BIA’s decision as long as it is not capricious, without
foundation in the evidence, or otherwise so irrational that it is arbitrary, rather
than the result of any perceptible rational approach. Singh v. Gonzales, 436
F.3d 484, 487 (5th Cir. 2006).
To comply with the statutory requirements, an order to show cause or
notice to appear must inform the alien of his obligation to provide a current
address and phone number, his obligation to provide any change of address, the
consequences for failing to provide an address and phone number, the time and
date of the hearing, and the consequences for failing to appear. § 1229(a)(1)(F)(G). It need not include the specific time and date of a removal hearing,
however, if that information is provided in a subsequent notice of hearing.
Gomez-Palacios, 560 F.3d at 359. Further, an alien is not entitled to subsequent
notice if he fails to provide the address information required under
§ 1229(a)(1)(F) and may be removed in absentia if he fails to appear.
§ 1229(a)(2)(B); 8 U.S.C. 1229a(b)(5)(A) & (B).
Neither party disputes that Abarca-Orellana failed to provide immigration
officials with an address despite being informed in English and Spanish of the
necessity of same and being warned about the consequences of the failure to
appear. Under our precedent, the show cause order was not statutorily deficient.
See Gomez-Palacios, 560 F.3d at 359. The order to show cause contained the

1

Abarca-Orellana does not contend that there are any material differences between
the relevant section now in effect and that in effect in 1994 denominated as 8 U.S.C.
§1252b(a)(1994).

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requisite warnings, in both English and Spanish; it was read to him; and he
signed it, attesting that service had been made.
As it is uncontested that Abarca-Orellana failed to provide an address
after receiving the necessary admonitions and our precedent construing the
relevant statutes demonstrates that subsequent notice was therefore not
required, the respondent’s motion for summary denial is GRANTED, and
Abarca-Orellana’s petition for review is DENIED. See Castillo-Enriquez v.
Holder, 690 F.3d 667, 668-69 (5th Cir. 2012).

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