Case: 10-60351 Document: 00511336478 Page: 1 Date Filed: 12/30/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 30, 2010
No. 10-60351
Summary Calendar Lyle W. Cayce
Clerk
BABUBHAI PATEL-RAMDAS,
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. A075 241 517
Before KING, BENAVIDES and ELROD, Circuit Judges.
PER CURIAM:*
Babubhai Patel-Ramdas (Patel), a native and citizen of India, has
petitioned for review of an order of the Board of Immigration Appeals (BIA),
which affirmed the decision of an immigration judge (IJ) declining to reopen
Patel’s immigration proceedings. In 1997, Patel failed to appear at his removal
hearing and was ordered deported in absentia. He argues now that he is entitled
to rescission of the removal order, asserting that he was not served with a notice
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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No. 10-60351
to appear and did not receive actual notice of the date and location of the
removal hearing.
Because the BIA made its own determination and did not adopt the
reasoning of the IJ, we review only the BIA’s decision. See Gomez-Palacios v.
Holder, 560 F.3d 354, 358 (5th Cir. 2009). We review the decision to deny the
motion to reopen for abuse of discretion, and we will uphold the BIA’s ruling as
long as it is not capricious, without foundation in the record, or irrational. Id.
We review the BIA’s factual findings for substantial evidence and will not
overturn them unless the evidence compels it. Id.
To initiate removal proceedings against an alien, the Government must
serve a notice to appear. 8 U.S.C. § 1229(a)(1). The alien must also be served
with notice of changes to the time or location of the removal proceedings.
§ 1229(a)(2)(A). Service must be in person, or if that is not practicable, then the
Government may serve the alien through the mail. § 1229(a)(1), (a)(2)(A). An
alien who fails to attend a removal hearing after written notice has been
provided “shall be ordered removed in absentia if the [Government] establishes
by clear, unequivocal, and convincing evidence that the written notice was so
provided and that the alien is removable.” 8 U.S.C. § 1229a(b)(5)(A). The IJ
may rescind the absentia removal order if, as relevant here, the alien establishes
that he did not receive the required notice of the hearing. § 1229a(b)(5)(C)(ii).
Patel first argues that he is entitled to rescission of the removal order,
asserting that he was not served with the notice to appear. Patel was taken into
custody shortly after crossing into the United States without inspection by
immigration officials. While in custody, he was issued a notice to appear
charging him with removability and outlining the consequences of failing to
appear. Though the certificate of service was signed only by an immigration
official and not Patel, Patel did sign the portion of the form requesting a prompt
hearing. In his brief to this court, Patel does not dispute that this signature is
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No. 10-60351
his. This signature constitutes substantial evidence supporting the BIA’s
finding that Patel was personally served with the notice to appear.
Patel next argues that his removal proceedings should be reopened,
contending that he did not receive actual notice of the time and location of the
removal hearing. In determining whether rescission is appropriate, the relevant
inquiry generally is whether the alien received the notice. See Gomez-Palacios,
560 F.3d at 360. However, an alien who does not receive notice is not entitled
to rescission if he neglected to provide the immigration court with his correct
mailing address. Id. When Patel was released from custody on bond, he
provided immigration officials with a forwarding address in Lexington,
Kentucky. A few days after his release, the immigration court sent a hearing
notice to that address, but the notice was returned by the post office as
undeliverable. Accordingly, the record supports the BIA’s conclusion that Patel
failed to provide an updated address to immigration officials. Indeed, in his
brief, Patel does not explain what his correct mailing address was and does not
describe what steps, if any, he took to notify immigration officials of his correct
address.
The BIA also upheld the IJ’s denial of Patel’s motion to reconsider.
However, Patel fails to challenge this determination in his brief. Accordingly,
he has abandoned this issue. See Zhu v. Gonzales, 493 F.3d 588, 593 n.10 (5th
Cir. 2007).
The BIA’s factual findings were supported by substantial evidence and it
did not abuse its discretion in upholding the IJ’s order denying Patel’s motion
to reopen his removal proceedings. Accordingly, Patel’s petition for review is
DENIED.
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