Carlos Fuentes-Diaz v. Loretta Lynch

Filing

UNPUBLISHED OPINION FILED. [16-60224 Affirmed ] Judge: TMR , Judge: PRO , Judge: JWE Mandate pull date is 07/31/2017 [16-60224]

Case: 16-60224

Document: 00514027548

Page: 1

Date Filed: 06/09/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-60224
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
June 9, 2017
Lyle W. Cayce
Clerk

CARLOS ROBERTO FUENTES-DIAZ,
Petitioner
v.
JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A099 477 869
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *

Carlos Roberto Fuentes-Diaz, a native and citizen of Guatemala, was
ordered removed in absentia after failing to appear at his removal hearing.
The immigration judge denied his motion to reopen. He now petitions for
review of the decision of the Board of Immigration Appeals dismissing his
appeal of the denial of his motion to reopen. He argues that service of the
Notice to Appear (NTA) was defective because the NTA did not include a list

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-60224

Document: 00514027548

Page: 2

Date Filed: 06/09/2017

No. 16-60224
of organizations and attorneys providing free legal services and did not include
a Form EOIR-33. Fuentes-Diaz also argues that service was defective because
he was not advised of the consequences of non-appearance at the removal
hearing and the obligation to report his address to the court. Finally, he argues
that lack of proper service resulted in a violation of his due process rights.
The NTA, which contained Fuentes-Diaz’s signature, advised him of the
obligation of providing his mailing address and the consequences of failing to
provide a current address. The NTA stated that it was served in person and
that the alien was provided oral notice in Spanish that the time and date for
the removal hearing would be set later and the consequences of failing to
appear. In addition, the NTA stated that a list of organizations and attorneys
was attached and Form I-803 indicated that he was given Form EOIR-33
before he was released from custody. Thus, the record reflects that FuentesDiaz was personally served with the NTA and that service was not defective.
See 8 U.S.C. § 1229(a). The record also reflects that Fuentes-Diaz failed to
provide his address. This was a proper basis to deny reopening the removal
proceedings. See 8 U.S.C. § 1229a(b)(5)(B); Gomez-Palacios v. Holder, 560 F.3d
354, 360-61 (5th Cir. 2009). Fuentes-Diaz has shown no abuse of discretion.
See Gomez-Palacios, 560 F.3d at 358. Fuentes-Diaz’s due process argument is
without merit. See id. at 361 n.2.
Fuentes-Diaz’s petition for review is DENIED.

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