Case: 13-60267 Document: 00512427066 Page: 1 Date Filed: 11/01/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 1, 2013
No. 13-60267
Summary Calendar Lyle W. Cayce
Clerk
DANIA MENCIA-MORALES,
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. A077 611 586
Before KING, BARKSDALE, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Dania Mencia-Morales, a native and citizen of Honduras, petitions for
review of the Board of Immigration Appeals’ (BIA) affirming the Immigration
Judge’s (IJ) denial of her June 2012 motion to reopen her removal proceedings,
which had resulted in an in absentia removal order in 2002. Mencia contends
the BIA erred by dismissing her motion to reopen, claiming: she was not advised
of her requirement to provide the immigration court her full mailing address; the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 13-60267
2001 hearing notice was sent to an incorrect address and thus establishes that
she did not have actual notice of her hearing before the IJ; and, because her
motion to reopen was unopposed, the IJ and BIA erred in denying it.
For our review, usually only the BIA’s decision is considered; the
underlying decision of the IJ will be considered only if it influenced the
determination of the BIA. Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 348 (5th
Cir. 2002). The denial of a motion to reopen is reviewed under a “highly
deferential abuse-of-discretion standard”. Gomez-Palacios v. Holder, 560 F.3d
354, 358 (5th Cir. 2009); see also Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir.
2006) (BIA decision must be upheld unless it is “utterly without foundation in
the evidence, or otherwise so irrational that it is arbitrary”) (citation and
internal quotation marks omitted).
The BIA’s finding, that Mencia both received the notice to appear, which
included her requirement to provide full, up-to-date address information, and
was instructed of the consequences of failing to appear at her hearings, is
supported by substantial evidence in the record. Mencia signed the notice to
appear and provided an address on the following day.
Likewise, the BIA’s finding Mencia failed to provide a complete address
and correct alias is supported by substantial evidence in the record. The hearing
notice was sent to the address Mencia provided and returned as undeliverable.
As a result, the BIA properly found she failed to receive notice because she
failed to meet her obligation to provide current-address information.
See 8 U.S.C. § 1229a(b)(5)(C)(ii) (rescission of removal order only when “failure
to appear was through no fault of the alien”); Gomez-Palacios, 560 F.3d at 360-61
(affirming BIA’s denial of appeal from in absentia removal when alien “failed to
comply with his obligation to provide . . . current address information”).
Moreover, as the BIA ruled, the IJ had authority to deny the motion to reopen,
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No. 13-60267
despite the lack of a response by the Department of Homeland Security. See 8
C.F.R. § 1003.23(b)(1)(iv) (providing IJ discretion “to grant or deny a motion to
reopen”, without distinguishing between opposed or unopposed motion).
DENIED.
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