Dharmegh Hashmukhbmai-Patel v. Loretta Lynch

Filing

UNPUBLISHED OPINION FILED. [16-60589 Affirmed ] Judge: FPB , Judge: EBC , Judge: JEG Mandate pull date is 11/27/2017 [16-60589]

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Date Filed: 10/06/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-60589
Summary Calendar

United States Court of Appeals
Fifth Circuit

DHARMEGH HASHMUKHBMAI-PATEL,

FILED
October 6, 2017
Lyle W. Cayce
Clerk

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. A074 589 160
Before BENAVIDES, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM: *
Dharmegh Hashmukhbmai-Patel, a native and citizen of India, petitions
for review of an order by the Board of Immigration Appeals (BIA) dismissing
his appeal of the immigration judge’s (IJ) denial of his motion to reopen his
deportation proceedings to rescind an in absentia deportation order. Arguing
that the BIA abused its discretion in dismissing his appeal, he contends that
he was not given notice of his deportation hearing because he had moved from

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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the Grand Prairie, Texas address to which the written notice was mailed and
thus did not receive it. Because he was not advised in his native language of
Gujarati of the Order to Show Cause’s (OSC) contents or his obligation to notify
the immigration court within five days regarding a change of address, he
contends that notice mailed to the Grand Prairie, Texas address could not
qualify as notice sent to his “last known address,” despite his failure to notify
the court of his address change.

Hashmukhbmai-Patel notes that if

proceedings were reopened, he would be eligible for an I-601A provisional
waiver of inadmissibility based on his wife’s I-130 visa petition.
We review the BIA’s dismissal of an appeal from an IJ’s denial of a
motion to reopen removal proceedings “under a highly deferential abuse-ofdiscretion standard.” Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir.
2009). The decision must be upheld “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.” Id. We review questions
of law de novo and factual findings for substantial evidence. Id. Under the
substantial-evidence test, “this court may not overturn the BIA’s factual
findings unless the evidence compels a contrary conclusion.” Id.
Under the rules applicable to Hashmukhbmai-Patel’s case, an alien may
file a motion to reopen at any time to rescind an in absentia deportation order
if he demonstrates that he did not receive proper notice of the deportation
hearing. See 8 U.S.C. § 1252b(c)(3) (West 1993) (repealed Sept. 30, 1996).
Upon being released on bond after being detained by immigration authorities,
Hashmukhbmai-Patel signed the OSC and an address notification, which were
written in English and Spanish and which contained several notifications and
warnings required by statute, including his obligation to provide his mailing
address to the immigration court, the requirement that he notify the court of

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any change in address within five days of the change, and the consequences of
failing to provide a current address. See 8 U.S.C. § 1252b(a)(1)(F) (West 1993)
(repealed).

The OSC stated that it was served in person and that

Hashmukhbmai-Patel was provided oral notice in English that the time and
place for the removal hearing would be set later. Although HashmukhbmaiPatel argues that he was not properly notified in his native language, the
statute required only that notice be provided in English and Spanish. See 8
U.S.C. § 1252b(a)(3)(A) (West 1993). Additionally, the record establishes and
Hashmukhbmai-Patel does not dispute that the immigration court attempted
to send notice of the deportation hearing by certified mail, return receipt
requested, to the Grand Prairie, Texas address, which was the only address
provided by Hashmukhbmai-Patel to the court. Under these circumstances,
the record does not compel a conclusion contrary to the BIA’s determination
that notice of the deportation proceedings was sufficient. See § 1252b(c)(1)
(West 1993).
Furthermore, to the extent that Hashmukhbmai-Patel’s argument could
be construed to challenge the denial of relief based on his new request for
adjustment of status, as described in § 1252b(e)(1) and (5) (West 1993), rather
than his request for rescission of the deportation order based on a lack of notice
under § 1252b(c)(3) (West 1993), he does not dispute the BIA’s determination
that his motion to reopen on that basis was subject to a 90-day limitations
period, and was thus untimely. See Matter of Monges-Garcia, 25 I. & N. Dec.
246, 253 (BIA 2010).

Therefore, the record does not compel a contrary

conclusion. See Gomez-Palacios, 560 F.3d at 358.
Hashmukhbmai-Patel does not argue, as he argued on appeal to the
BIA, that he is entitled to a sua sponte reopening of his deportation

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proceedings based on exceptional circumstances.

Accordingly, he has

abandoned this issue. See Thuri v. Ashcroft, 380 F.3d 788, 793 (5th Cir. 2004).
In light of the foregoing, the BIA did not abuse its discretion in
dismissing Hashmukhbmai-Patel’s appeal of the IJ’s denial of the motion to
reopen. See Gomez-Palacios, 560 F.3d at 358. Accordingly, HashmukhbmaiPatel’s petition for review is DENIED.

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