FILED
NOT FOR PUBLICATION JUL 15 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTOR MANUEL DELGADO, No. 10-73571
Petitioner, Agency No. A095-764-388
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 11, 2014**
Pasadena, California
Before: SILVERMAN, TALLMAN, and RAWLINSON, Circuit Judges.
Victor Delgado missed his immigration hearing because he didn’t see the
hearing notice until it was too late. He didn’t see the notice until it was too late
because he failed to check his mail regularly. The Immigration Judge ordered him
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
removed in absentia and denied Delgado’s later motion to reopen. The Board of
Immigration Appeals dismissed his appeal. Now Delgado petitions for review.
We have jurisdiction under 8 U.S.C. §§ 1252(a)(1) and 1229a(b)(5)(D)
(limiting our review to, as relevant here, the “validity of the notice provided to the
alien” and “the reasons for the alien’s absence” from the hearing). Here, the BIA
adopted the IJ’s decision, adding comments, so we review both decisions.
Lopez-Cardona v. Holder, 662 F.3d 1110, 1111 (9th Cir. 2011). That review is for
abuse of discretion. Hamazaspyan v. Holder, 590 F.3d 744, 747 (9th Cir. 2009).
Finding none, we deny the petition.
Delgado makes two arguments. First, he argues that he should have been
allowed to receive notice at his post office box. We agree with the BIA and the IJ
that this argument fails. Notice is presumptively adequate if mailed to the last
address provided by the alien. 8 U.S.C. § 1229a(b)(5)(A). Delgado admits that
“notice of his removal hearing was properly sent,” and the cases he cites—Alrefae
v. Chertoff, 471 F.3d 353, 356–57 (2d Cir. 2006), and Joshi v. Ashcroft, 389 F.3d
732, 735 (7th Cir. 2004)—are distinguishable. Both involve aliens arguing that
they didn’t receive properly mailed notice. Delgado, on the other hand, admits
receipt.
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Second, Delgado argues that exceptional circumstances excuse his failure to
appear. Exceptional circumstances include only those “beyond control of the
alien.” 8 U.S.C. § 1229a(e)(1). Here, Delgado admits that—even though he knew
that notice was on the way—he could have, but didn’t, check his own mail
regularly.
PETITION DENIED.
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