Diego Diego-Martin v. U.S. Attorney General , 303 F. App'x 788 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 17, 2008
No. 08-13520 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A73-724-750
DIEGO DIEGO-MARTIN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(December 17, 2008)
Before BLACK, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
After applying for asylum in the United States, Diego Diego-Martin moved
to a new address. Because he did not submit his change of address, he did not
receive his notice to appear, which the government sent via certified mail to the
address he provided. The immigration judge (IJ) denied Diego-Martin’s motion to
reopen his removal proceedings. The Board of Immigration Appeals (Board)
affirmed the IJ’s order without opinion.
Diego-Martin, proceeding pro se, petitions for review of the Board’s
decision. He argues that the Board erred by not reopening his removal proceedings
because he never received the notice, and the consequences of not appearing were
never explained to him. He further argues that his due process rights were
violated. For the reasons that follow, we deny Diego-Martin’s petition.
We review the Board’s denial of a motion to reopen for an abuse of
discretion. See Mejia-Rodriguez v. U.S. Att’y Gen., 178 F.3d 1139, 1145 (11th Cir.
1999). “We review only the Board’s decision, except to the extent that it expressly
adopts the IJ’s opinion. Insofar as the Board adopts the IJ’s reasoning, we will
review the IJ’s decision as well.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th
Cir. 2001) (internal citation omitted).
“[A] mailing to the last known address is sufficient to satisfy the
[government’s] duty to provide an alien with notice of a deportation proceeding.”
United States v. Zelaya, 293 F.3d 1294, 1298 (11th Cir. 2002). “[A]n alien has an
affirmative duty to provide the government with a correct address” and “[f]ailing to
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provide [the government] with a change of address will preclude the alien from
claiming that [the government] did not provide him or her with notice of a
hearing.” Dominguez v. U.S. Att’y. Gen., 284 F.3d 1258, 1260 (11th Cir. 2002)
(per curiam).
Any alien, who, after written notice has been provided, does not attend a
proceeding, shall be ordered removed in absentia if the government establishes by
“clear, unequivocal, and convincing evidence” that it gave written notice and the
alien was removable. INA § 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A). An alien
may seek rescission of an in absentia removal order by filing a motion to reopen
(1) within 180 days after the order of removal and by demonstrating that his failure
to appear was because of exceptional circumstances; or (2) at any time if the alien
demonstrates that he did not receive proper notice of the removal proceedings or
that he was in federal or state custody at the time of the proceedings and the failure
to appear was not his fault. INA § 240(b)(5)(C), 8 U.S.C. § 1229a(b)(5)(C).
“Due process requires that aliens be given notice and [an] opportunity to be
heard in their removal proceedings.” Fernandez-Bernal v. U.S. Att’y Gen., 257
F.3d 1304, 1310 n.8 (11th Cir. 2001). “Due process is satisfied so long as the
method of notice is conducted in a manner reasonably calculated to ensure that
notice reaches the alien.” Dominguez, 284 F.3d at 1259 (citation and quotation
marks omitted). Due process is satisfied where notice is mailed to “the most recent
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address provided by the alien.” Id. at 1260.
Here, the Board adopted the IJ’s decision without opinion. Thus, we review
the IJ’s decision. See Al Najjar, 257 F.3d at 1284. After carefully reviewing the
decision, the record, and the parties’ briefs, we find no abuse of discretion.
Because notice of Diego-Martin’s removal hearing was sent to the most recent
address provided, he was given proper statutory notice, and his due process rights
were not violated. Accordingly, the Board did not abuse its discretion by denying
his motion to reopen due to a lack of notice. His petition is denied.
PETITION DENIED.
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