Chavez v. Holder

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
September 10, 2009
No. 08-60592
Summary Calendar Charles R. Fulbruge III
Clerk

JOSE ISAAC CHAVEZ, also known as Edmundo Isaac Samayoa-Chavez

Petitioner

v.

ERIC H HOLDER, U S ATTORNEY GENERAL

Respondent

Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A77 531 324

Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Jose Isaac Chavez petitions this court for review of the Board of
Immigration Appeals’ (BIA) decision dismissing his appeal from the immigration
judge’s (IJ) denial of his motion to reopen and to rescind the in absentia order of
removal. Chavez argues that because he did not receive the required statutory
notice of the hearing date, the BIA’s decision denying his motion to reopen was
an abuse of discretion. We disagree and DENY the petition.

*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
 No. 08-60592

In reviewing the denial of a motion to reopen, this court applies a highly
deferential abuse-of-discretion standard, regardless of the basis of the alien’s
request for relief. Lara v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000).
Accordingly, this court must affirm the BIA’s decision as long as it is not
capricious, without foundation in the evidence, or otherwise so irrational that it
is arbitrary rather than the result of any perceptible rational approach. See
Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006).
While questions of law are reviewed de novo, this court accords deference
to the BIA’s interpretation of immigration statutes unless the record reveals
compelling evidence that the BIA’s interpretation is incorrect. Mikhael v. INS,
115 F.3d 299, 302 (5th Cir. 1997). The BIA’s factual findings are reviewed under
the substantial-evidence test, meaning that this court may not overturn the
BIA’s factual findings unless the evidence compels a contrary conclusion. Chun
v. INS, 40 F.3d 76, 78 (5th Cir. 1994). This court reviews the order of the BIA
and will consider the underlying decision of the IJ only if it influenced the
determination of the BIA. See Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 348
(5th Cir. 2002).
Under 8 U.S.C. § 1229a(b)(5)(A), an alien who does not attend a hearing
after written notice has been provided to the alien or the alien’s counsel of record
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. The notice requirement for obtaining a removal
order is satisfied if proper notice is provided at the most recent mailing address
provided by the alien, but the Government need not establish that written notice
was provided in order to obtain an in absentia removal order if the alien has
failed to provide a current mailing address. 8 U.S.C. § 1229a(b)(5)(A)–(B).
Pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii), an in absentia removal order may be
rescinded “upon a motion to reopen filed at any time if the alien demonstrates
that the alien did not receive notice in accordance with paragraph (1) or (2) of

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section 1229(a) of this title.” 8 U.S.C. §§ 1229a(b)(5)(C)(ii), 1229(a)(1)–(2); see
also Maknojiya v. Gonzales, 432 F.3d 588, 589 (5th Cir. 2005).
The Notice to Appear (NTA) warned Chavez, in a section captioned,
“Failure to appear,” that he was required to provide the Immigration and
Naturalization Service (now the Department of Homeland Security) with his
mailing address, as notices of hearing would be mailed to the address provided.
Chavez failed to do so. Accordingly, Chavez cannot now claim of the lack of
notice. See 8 U.S.C. § 1229a(b)(5)(B). Thus, the BIA did not err in denying
Chavez’s motion to reopen. See Gomez-Palacios v. Holder, 560 F.3d 354, 360-61
(5th Cir. 2009).
We also reject Chavez’s argument that he was not properly advised, in his
native language of Spanish, of his duty to provide the immigration court with an
address. Section 1229(a)(1) does not explicitly require that the NTA be in any
language other than English.
To the extent that Chavez complains that the denial of the motion to
reopen violates his due process rights, the claim fails because motions to reopen
are discretionary, and the denial of discretionary relief does not give rise to a
constitutional violation even if the movant establishes prima facie eligibility for
the relief. See Assaad v. Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004). Chavez’s
motion for stay of removal is DENIED.

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