F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 24 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
LESLY ARACELY COELLO-
AMADOR,
Petitioner,
No. 04-9545
v. (No. A73 375 471)
(Petition for Review)
JOHN ASHCROFT, Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before EBEL , BALDOCK , and KELLY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Petitioner Lesly Aracely Coello-Amador, a native and citizen of Honduras,
seeks review of a Board of Immigration Appeals (BIA) order denying her motion
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
to reopen removal proceedings and also challenges the BIA’s refusal to exercise
its sua sponte power to reopen proceedings. This court affirms the denial of the
BIA’s order and, for lack of jurisdiction, does not consider petitioner’s alternative
claim for relief.
I. Background
Petitioner was admitted to the United States on July 7, 1994, on a six-
month nonimmigrant visa. She overstayed the duration of the visa and, on
September 6, 1995, she was personally served with an Order to Show Cause. The
Order, which was written in both English and Spanish, charged her with
deportability and informed her that she would be required to appear for a hearing
to be calendared and noticed at a later date. It warned that if she failed to appear,
she would “be ordered deported in [her] absence if it is established that [she is]
deportable and [she had] been provided the appropriate notice of the hearing.”
Admin. R. at 235. The Order also stated that petitioner was “required by law to
provide immediately in writing an address (and telephone number, if any) where
[she] could be reached” and notice of the hearing would be mailed only to the last
address provided by petitioner. Id. Petitioner provided the mailing address of
P.O. Box 6524, Sheridan, Wyoming.
A hearing notice was sent by certified mail to that address, advising
petitioner of an immigration hearing scheduled for January 18, 1996, in Denver,
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Colorado. The notice was received and signed for by an individual named Frank
Schultz. Petitioner did not appear for the hearing. Rather than proceeding in
absentia , the Immigration Judge adjourned the hearing to February 1, 1996,
giving petitioner a second chance to appear. A second hearing notice was sent to
petitioner at the same address and it, too, was received and signed for by
Mr. Schultz.
Petitioner again failed to appear for her hearing. The Immigration Judge
proceeded in absentia , found that petitioner was deportable as charged, and
ordered her deported to Honduras. A copy of the order was sent to petitioner at
the same address. Later, it was returned to the Immigration Court with a
handwritten “return-to-[s]ender” designation. Id. at 213. Also, Mr. Schultz
visited the INS office in Casper, Wyoming, to state that petitioner had moved out
and he did not know her current address.
More than three years later, petitioner filed a motion to reopen the in
absentia proceeding. The Immigration Judge determined that petitioner “was
given every opportunity to attend. The notice was served at the proper address.
[She] did not report a new address. She has not satisfied the statutory
requirements for reopening.” Id. at 161. He therefore denied the motion to
reopen. Petitioner appealed to the BIA, which summarily affirmed the
Immigration Judge’s decision without opinion.
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II. Discussion
This court reviews the agency’s decision on a motion to reopen for abuse of
discretion. “The BIA abuses its discretion when its decision provides no rational
explanation, inexplicably departs from established policies, is devoid of any
reasoning, or contains only summary or conclusory statements.” Gurung v.
Ashcroft , 371 F.3d 718, 720 (10th Cir. 2004) (quotations omitted). Petitioner
argues that her motion to reopen was improperly denied, because she had no
notice of the immigration hearing.
As background information, petitioner explains that she married her United
States citizen husband, Larry Branson, before her visa expired. She then
separated from her husband to live with Mr. Schultz at the Sheridan, Wyoming
address. Later, she had a disagreement with Mr. Schultz and returned to her
husband. She left Mr. Schultz’s home before receiving the hearing notices. 1
1
The above summary of petitioner’s living arrangements is based on the
account given in her appellate brief. We note, however, that the administrative
record provides several, perhaps conflicting, versions. The Record of Deportable
Alien compiled by INS Special Agent Terence D. Wilson on September 6, 1995,
states that petitioner informed him that she came to the United States to visit Mr.
Schultz in Sheridan, left him and married Mr. Branson, then returned to
Mr. Schultz, filing for divorce from Mr. Branson. Admin R. at 219. An affidavit
signed by petitioner’s attorney, dated January 6, 2000, was filed in connection
with the motion to reopen. The affidavit states that both petitioner and her
husband temporarily moved to Sheridan to stay “with a friend . . . in furtherance
of Mr. Branson’s employment as a long distance trucker” and that petitioner left
her temporary residence “due to an argument with her friend.” Id. at 103.
(continued...)
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Except for this period of separation, petitioner and her husband have lived
together for ten years.
Petitioner’s lack of receipt of the hearing notices has no legal significance.
As this court has previously stated, “[a] notice to appear is sufficient, both for due
process and statutory purposes, if it is sent by regular mail to an alien’s contact
address of record.” Id. at 721. The notice sent to petitioner “complied with the
immigration statutes and the Constitution.” Id. Further, there was no abuse of
discretion in the denial of petitioner’s motion to reopen. To be eligible, petitioner
would have had to “‘present substantial and probative evidence . . . demonstrating
that there was improper delivery or that nondelivery was not due to [her] failure
to provide an address where [she] could receive mail.’ ” Id. at 722 (quoting
Fuentes-Argueta v. INS , 101 F.3d 867, 871 (2d Cir. 1996) (per curiam) (further
quotation omitted, emphasis added, and alteration in original).
1
(...continued)
Petitioner’s affidavit dated October 2, 2000, amplified this story. In it, she
averred that she had been living with a “girlfriend” in Sheridan because her
husband was away on a job. Id. at 62. She “moved out of [the] girlfriend’s house
. . . part[ing] [on] bad terms,” so she “did not leave a forwarding address. Later
[she] found out that [the girlfriend] had passed away.” Id. at 63.
There is no need to reconcile these varying accounts. The common thread
is that petitioner moved from Sheridan without fulfilling her obligation to change
her address of record before the in absentia hearing took place.
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In sum, petitioner’s argument based on failure to receive notice is squarely
foreclosed by Tenth Circuit authority.
Petitioner also claims that the BIA abused its discretion by declining to
reopen proceedings under its sua sponte power. Generally, “we have no
jurisdiction to consider petitioner’s claim that the BIA should have exercised its
sua sponte power to reopen [her] case.” Belay-Gebru v. INS , 327 F.3d 998, 1000
(10th Cir. 2003); see also Infanzon v. Ashcroft, 386 F.3d 1359, 1361 (10th Cir.
2004). This decision “‘is committed to [the BIA’s] unfettered discretion,’” so
that “‘the very nature of the claim renders it not subject to judicial review.’”
Belay-Gebru, 327 F.3d at 1000-01 (quoting Luis v. INS. , 196 F.3d 36, 40 (1st Cir.
1999)). Further, our jurisdiction to review in absentia orders is limited to “the
issues of the validity of the notice provided to the alien, to the reasons for the
alien’s not attending the proceeding, and to whether or not clear, convincing, and
unequivocal evidence of deportability has been established.” 8 U.S.C.
§ 1252b(c)(4) (1996). 2
In short, this court does “not have jurisdiction to consider
petitioner’s claim that the BIA should have sua sponte reopened the proceedings.”
Infanzon , 386 F.3d at 1361.
2
Because petitioner was placed in immigration proceedings in 1995, the
1996 version of § 1252b is applicable to her case. The provision has been
repealed by Pub. L. 104-208, Div. C, Title III, § 308(b)(6) (Sept. 30, 1996), 110
Stat. 3009-615.
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The decision of the Board of Immigration Appeals is AFFIRMED, and the
petition for review is DENIED.
Entered for the Court
David M. Ebel
Circuit Judge
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