Gregory Taylor v. Eric Holder, Jr. , 551 F. App'x 55 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2196
GREGORY BOBBY TAYLOR,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: January 7, 2014 Decided: January 22, 2014
Before KING, AGEE, and THACKER, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Gregory Bobby Taylor, Petitioner Pro Se. William Charles
Peachey, Edward Earl Wiggers, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gregory Bobby Taylor, a native and citizen of Jamaica,
petitions for review of an order of the Board of Immigration
Appeals (“Board”) dismissing his appeal from the immigration
judge’s order denying his motion to reopen. We deny the
petition for review.
We “review the denial of a motion to reopen for an
abuse of discretion” and will reverse “only if it is arbitrary,
irrational, or contrary to law.” Mosere v. Mukasey, 552 F.3d
397, 400 (4th Cir. 2009) (internal quotation marks omitted); see
also 8 C.F.R. § 1003.23(b)(1) (2013).
Under 8 U.S.C. § 1252(a)(2)(C) (2012), we lack
jurisdiction, except as provided in 8 U.S.C. § 1252(a)(2)(D), to
review the final order of removal of an alien convicted of
certain enumerated crimes, including an aggravated felony.
Under § 1252(a)(2)(C), we retain jurisdiction “to review factual
determinations that trigger the jurisdiction-stripping
provision, such as whether [Taylor] [i]s an alien and whether
[]he has been convicted of an aggravated felony.” Ramtulla v.
Ashcroft, 301 F.3d 202, 203 (4th Cir. 2002). If we are able to
confirm these two factual determinations, then, under 8 U.S.C.
§ 1252(a)(2)(C), (D), we can only consider “constitutional
claims or questions of law.” See Mbea v. Gonzales, 482 F.3d
276, 278 n.1 (4th Cir. 2007).
2
When a person fails to appear for a removal hearing
after having received written notice of the hearing, the
immigration judge shall order that person removed in absentia if
the Government establishes that the person is removable. 8
U.S.C. § 1229a(b)(5) (2012). Written notice of the time and
place of the hearing is proper if given “in person to the alien
(or, if personal service is not practicable, through service by
mail to the alien or to the alien’s counsel of record, if
any)[.]” 8 U.S.C. § 1229(a)(1) (2012). Accordingly, the
Government can establish proper notice by demonstrating that
written notice of the time and place of the proceedings and of
the consequences of a failure to appear, “were provided to the
alien or the alien’s counsel of record.” 8 C.F.R.
§ 1003.26(c)(2) (2013).
Taylor does not contest the finding that he is
removable for having been convicted of an aggravated felony.
Thus, our review is limited to constitutional claims and
questions of law. Taylor does not meaningfully challenge the
Board’s finding that notice of the hearing was sent to the
Taylor’s last known address and that he did not inform the
immigration court of his new address when he moved. In any
event, whether notice was properly sent is a question of fact
and not a reviewable constitutional claim or question of law.
See Lopez-Dubon v. Holder, 609 F.3d 642, 646-47 (5th Cir. 2010)
3
(whether an alien receives proper notice of a hearing is a
factual finding).
Taylor’s contention that he is eligible for deferral
of removal under the Convention Against Torture does not present
a reviewable issue because Taylor did not apply for such relief
before the immigration judge.
Because we conclude that the Board did not err
affirming the immigration judge’s order denying the motion to
reopen, we deny the petition for review. We deny as moot the
motion to stay. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
PETITION DENIED
4