Soraya Barreiros-Matos v. Loretta Lynch
Per Curiam OPINION filed : we DENY Barreiros-Matos s petition for review, decision not for publication. Danny J. Boggs, Circuit Judge; David W. McKeague, Circuit Judge and Richard Allen Griffin, Circuit Judge.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0225n.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JEFF B. SESSIONS, U.S. Attorney General,
Apr 18, 2017
DEBORAH S. HUNT, Clerk
ON PETITION FOR REVIEW
FROM THE UNITED STATES
BOARD OF IMMIGRATION
BEFORE: BOGGS, McKEAGUE, and GRIFFIN, Circuit Judges.
PER CURIAM. Soraya Barreiros-Matos petitions for review of an order of the Board of
Immigration Appeals (BIA) that affirmed an immigration judge’s (IJ) denial of her motion to
Barreiros-Matos, a native and citizen of Brazil, entered the United States on or about
December 22, 2004.
The following day, the Department of Homeland Security personally
served her with a notice to appear for a removal hearing on March 11, 2005. The notice to
appear was written in English, but it noted that Barreiros-Matos was provided oral notice in her
native Portuguese language of the time and place of the hearing and the consequences for failure
to appear. The immigration court subsequently mailed Barreiros-Matos a notice of the March 11
hearing. The notice was dated March 9, but not postmarked until March 11, 2005. It was mailed
No. 16-3967, Barreiros-Matos v. Sessions
to the address that she had provided, but the notice was returned as undeliverable. BarreirosMatos did not appear for her removal hearing, and the IJ ordered her removed in absentia.
On June 8, 2015, Barreiros-Matos filed a motion to reopen her removal proceedings,
arguing that she did not receive proper notice of her removal hearing because an immigration
officer told her to expect a notice of hearing in the mail, and she never received the notice. The
IJ denied the motion to reopen, concluding that Barreiros-Matos received proper notice of the
hearing. The BIA affirmed the IJ’s decision, concluding that Barreiros-Matos received both
written and oral notice of the removal hearing.
The BIA further concluded that, even if
Barreiros-Matos did not receive proper oral notice, the written notice provided by the notice to
appear was sufficient.
On appeal, Barreiros-Matos raises two arguments: (1) the BIA engaged in improper factfinding by concluding that she was properly told about the hearing date and by rejecting her
claim that an immigration officer misadvised her to wait for a hearing notice to arrive in the
mail; and (2) she was denied due process by the BIA’s determination that the notice to appear on
its own provided sufficient notice of the removal hearing.
We review for an abuse of discretion the BIA’s denial of a motion to reopen a removal
order. Kukalo v. Holder, 744 F.3d 395, 402 (6th Cir. 2011). An abuse of discretion occurs if the
denial was made without a rational explanation, inexplicably departed from established policies,
or rested on an impermissible basis such as invidious racial discrimination. Id.
Barreiros-Matos first argues that the BIA engaged in improper fact-finding by concluding
that she was properly told about the hearing date and by rejecting her claim that an immigration
officer misadvised her to wait for a hearing notice to arrive in the mail.
See 8 C.F.R.
§ 1003.1(d)(3)(iv) (stating that, except for taking administrative notice of commonly known
No. 16-3967, Barreiros-Matos v. Sessions
facts, the BIA will not engage in fact-finding in the course of deciding appeals). But the BIA did
not rely on any factual findings beyond those contained in the IJ’s opinion.
Barreiros-Matos’s motion to reopen, the IJ found that she was orally notified of the hearing
details in her native language, thereby rejecting Barreiros-Matos’s claim that an immigration
officer misadvised her about the hearing. The BIA merely affirmed that factual determination
rather than making factual findings of its own.
Barreiros-Matos also argues that she was denied due process by the BIA’s determination
that the notice to appear, on its own, provided sufficient notice of the removal hearing. She
contends that the notice to appear was insufficient because she did not speak English, the date of
the hearing was not translated for her, and an immigration officer misadvised her that she should
wait for a hearing notice to arrive in the mail. Because Barreiros-Matos has not successfully
challenged the finding that she was orally advised of the hearing details in her native language,
we need not address the merits of this claim, which challenges only the BIA’s alternative holding
that the notice to appear, on its own, provided sufficient notice of the removal hearing.
Accordingly, we DENY Barreiros-Matos’s petition for review.
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