Tesfagaber v. Holder , 323 F. App'x 222 ( 2009 )

Vacated by Supreme Court, April 27, 2009
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-2118
SOLOMON DEBESSAY TESFAGABER,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: March 25, 2009 Decided: April 23, 2009
Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Laura Tuell Parcher, Christian G. Vergonis, Juliet Johnson
Karastelev, JONES DAY, Washington, D.C., for Petitioner.
Michael F. Hertz, Acting Assistant Attorney General, Linda
Wernery, Assistant Director, Scott Rempell, 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Unpublished opinions are not binding precedent in this circuit.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:
Solomon Debessay Tesfagaber, a native and citizen of
Ethiopia, 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 and to
rescind the in absentia removal order. We deny the petition for
review.
We review the denial of a motion to reopen for abuse
of discretion. 8 C.F.R. § 1003.23(b)(1)(iv) (2008); INS v.
Doherty, 502 U.S. 314, 323-24 (1992); Barry v. Gonzales, 445
F.3d 741, 744 (4th Cir. 2006). A denial of a motion to reopen
must be reviewed with extreme deference, since immigration
statutes do not contemplate reopening and the applicable
regulations disfavor such motions. M.A. v. INS, 899 F.2d 304,
308 (4th Cir. 1990) (en banc). This court will reverse the
denial of a motion to reopen only if the denial is “arbitrary,
capricious, or contrary to law.” Barry, 445 F.3d at 745. When,
as here, the Board affirmed the immigration judge’s decision to
deny the motion to reopen, the court reviews that decision and
the immigration judge’s decision to the extent the Board relied
upon it. Niang v. Gonzales, 492 F.3d 505, 511 n.8 (4th Cir.
2007).
A removal order issued in absentia may be rescinded
“upon a motion to reopen filed within 180 days after the date of
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the order of removal if the alien demonstrates that the failure
to appear was because of exceptional circumstances (as defined
in subsection (e)(1) of this section).” See 8 U.S.C.
§ 1229a(b)(5)(C)(i). Section 1229a(e)(1) provides that:
The term “exceptional circumstances” refers to
exceptional circumstances (such as battery or extreme
cruelty to the alien or any child or parent of the
alien, serious illness of the alien, or serious
illness or death of the spouse, child, or parent of
the alien, but not including less compelling
circumstances) beyond the control of the alien.
It is uncontested that Tesfagaber did not file the
motion to reopen within 180 days. Insofar as he argues that the
time period is subject to equitable tolling, this is not an
issue he raised before the Board and is not properly before this
court because it was not exhausted. Gonahasa v. INS, 181 F.3d
538, 544 (4th Cir. 1999). Even if he had exhausted the argument
before the Board, he did not argue that he was diligent in his
efforts to keep current with his immigration proceedings after
the Board remanded the action to the immigration judge. See,
e.g., Barry v. Mukasey, 524 F.3d 721, 724-25 (6th Cir. 2008)
(describing factors to consider when determining whether
equitable tolling is appropriate).
An in absentia removal order may be rescinded at any
time “if the alien demonstrates that the alien did not receive
notice” of the hearing either by service in person or by mail,
except that if the notice specified a new time and date for the
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hearing, written notice is not required if the alien failed to
provide a current mailing address. 8 U.S.C.
§ 1229a(b)(5)(C)(ii). However, Tesfagaber failed to keep the
immigration court current with his mailing address. See
Dominguez v. U.S. Atty Gen., 284 F.3d 1258, 1260-61 & n.4 (11th
Cir. 2002) (holding that an alien who does not actually receive
notice due to a failure to provide a current mailing address
cannot demonstrate that he did not receive notice in accordance
with paragraph (1) or (2) of § 1229(a) because § 1229a(b)(5)(B)
states that “[n]o written notice shall be required . . . if the
alien has failed to provide the address required under section
1229(a)(1)(F) of this title.”) (emphasis added); see also Gomez-
Palacios v. Holder, __ F.3d __, __, 2009 WL 388943, *4 (5th Cir.
2009) ([I]f the alien’s failure to receive notice is “due to his
neglect of his obligation to keep the immigration court apprised
of his current mailing address [it] does not mean that the alien
did not receive notice.”) (emphasis added); Sabir v. Gonzales,
421 F.3d 456, 459 (7th Cir. 2005) (“[A]n alien should not be
able to make himself unreachable, and then later ask to have his
case reopened because he did not receive notice.”). Thus,
because it was shown that the notice was sent to his last known
address and Tesfagaber did not notify the immigration court of a
current address at which he could be contacted, he cannot now
seek rescission of the removal order based on not receiving
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notice. Thus, we find the Board did not abuse its discretion in
affirming the immigration judge’s denial of Tesfagaber’s motion
to reopen. Nor do we find Tesfagaber was denied due process.
See, e.g, Rusu v. INS, 296 F.3d 316, 321-22 (4th Cir. 2002) (the
fundamental requirement of due process is the opportunity to be
heard at a meaningful time and manner) (emphasis added).
Clearly, Tesfagaber was provided with the opportunity to be
heard, which he missed due to his failure to keep the
immigration court informed of a current mailing address.
Insofar as Tesfagaber claims he is entitled to relief
under the Convention Against Torture (“CAT”), because he was
found removable for having committed an aggravated felony, we do
not have jurisdiction to review the immigration judge’s factual
findings in this regard. Saintha v. Mukasey, 516 F.3d 243, 248-
49 (4th Cir.), cert denied, 129 S. Ct. 595 (2008). We further
find that the Board’s decision not to rescind the in absentia
removal order would not have an unconscionable result. See,
e.g., Singh v. INS, 295 F.3d 1037, 1040 (9th Cir. 2002) (alien
was the beneficiary of an approved visa petition and would not
have been deported but for his failure to appear).
Accordingly, we deny the petition for review. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
PETITION DENIED
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