Sergia Menjivar-Murillo v. Merrick B. Garland ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0496n.06
Case No. 22-3208
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Dec 02, 2022
SERGIA MARIELA MENJIVAR-MURILLO, ) DEBORAH S. HUNT, Clerk
)
Petitioner, )
) ON PETITION FOR REVIEW FROM
v. ) THE UNITED STATES BOARD OF
) IMMIGRATION APPEALS ; Agency
MERRICK B. GARLAND, Attorney General, ) No. A200-607-160
Respondent. )
) OPINION
Before: BOGGS, STRANCH, and THAPAR, Circuit Judges.
THAPAR, Circuit Judge. Sergia Menjivar-Murillo (“Menjivar”) petitions for review of an
order denying her motion to reopen removal proceedings. We dismiss her petition in part and deny
it in part.
I.
On February 24, 2010, Menjivar left Mexico on foot and tried to enter the United States
illegally. United States Border Patrol agents found her crossing the border and arrested her. The
Border Patrol turned her over to an immigration officer, who determined she was in the United
States unlawfully. Thus, the Department of Homeland Security initiated removal proceedings and
personally served Menjivar with a Notice to Appear (“Notice”). That Notice listed Menjivar’s
address of record, then in Kentucky, and ordered her to appear before an immigration judge (“IJ”)
in Louisville at a date and time “to be set.” AR101. The Notice informed Menjivar of her
Case No. 22-3208, Menjivar-Murillo v. Garland.
obligation to notify the Immigration Court immediately if she changed her address. Otherwise,
the Notice warned, the government would not be required to provide her with written notice of her
hearing. The Notice also cautioned that if Menjivar failed to attend a hearing, an IJ could order
her removal in her absence.
The Immigration Court mailed Menjivar a hearing notice at her Kentucky address the
following year. That document informed Menjivar that her removal hearing had been scheduled
for October 1, 2012, at the Immigration Court in Louisville. Menjivar failed to appear. In her
absence, the IJ concluded DHS had satisfied its burden of proving Menjivar’s removability and
ordered her removal.
More than seven-and-a-half years later, Menjivar asked the IJ to reopen her case and
rescind the removal order. Menjivar explained that she never received the hearing notice because
she had moved to another state, though she conceded that she never informed the Immigration
Court of her new address.
The IJ denied the motion to reopen, concluding Menjivar had received legally adequate
notice and that no exceptional circumstances warranted sua sponte reopening. The Board of
Immigration Appeals (“BIA”) adopted and affirmed the IJ’s decision and dismissed Menjivar’s
appeal. This petition timely followed.
Where, as here, the BIA adopted and affirmed the IJ’s reasoning, we review both opinions.
See Guzman-Vasquez v. Barr, 959 F.3d 253, 259 (6th Cir. 2020).
II.
Menjivar presents two arguments in her petition. Neither succeeds.
First, Menjivar argues that the IJ should have granted her motion because (1) her initial
notice to appear failed to specify the time and location of her hearing, and (2) the hearing notice
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Case No. 22-3208, Menjivar-Murillo v. Garland.
subsequently mailed to her did not cure that defect. See Niz-Chavez v. Garland, 141 S. Ct. 1474(2021). Because Menjivar never made this argument to the IJ or the BIA, we lack jurisdiction to
consider it. See Ramani v. Ashcroft, 378 F.3d 554, 558 (6th Cir. 2004).1
Second, Menjivar argues the agency gave inadequate weight to an affidavit explaining that
she never received notice of the October 1, 2012, hearing. Because Menjivar presented this
argument to the BIA, we have jurisdiction to address it. See Hasan v. Ashcroft, 397 F.3d 417, 420
(6th Cir. 2005).
In general, the government must supply written notice of an immigration hearing, either
through personal service or through service by mail. See 8 U.S.C. § 1229(a). Service by mail is
sufficient if the government can prove it attempted delivery to the last mailing address that the
person provided. See id. § 1229(c). Here, the Immigration Court mailed Menjivar a hearing notice
at her address of record, and there was no evidence that the mail was returned or otherwise marked
as undeliverable. It was reasonable for the IJ to conclude that Menjivar was provided with notice
of her hearing. See Valadez-Lara v. Barr, 963 F.3d 560, 568-69 (6th Cir. 2020).
Moreover, because Menjivar failed to keep her address current with the Immigration Court,
the government was not required to provide her with written notice. See 8 U.S.C. § 1229(a)(1)(F);
id. § 1229a(b)(5)(B). Nor was Menjivar entitled to reopening after her “own conduct made . . .
1
Niz-Chavez forms the basis of Menjivar’s argument on this point, and the Supreme Court issued its opinion in Niz-
Chavez after Menjivar’s briefing before the IJ and the BIA. But the timing makes no difference, for three reasons.
First, Menjivar could have made the argument she makes now without relying on Niz-Chavez. Cf. Wright v. Spaulding,
939 F.3d 695, 705–06 (6th Cir. 2019) (“A new case matters only, if at all, because of the new legal arguments it makes
available.”). Second, exhaustion ensures the agency has had a full opportunity to consider an alien’s claims and
compile a record “adequate for judicial review,” Ramani, 378 F.3d at 559 (citation omitted), and it has not had the
opportunity to do either of those things here. And third, Menjivar has not addressed her failure to exhaust, so she has
forfeited any argument that that failure should be excused. See Thaddeus-X v. Blatter, 175 F.3d 378, 403 n.18 (6th
Cir. 1999).
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her unreachable.” Sanchez v. Holder, 627 F.3d 226, 233 (6th Cir. 2010) (citation omitted). Thus,
the BIA did not abuse its discretion by dismissing Menjivar’s appeal.2
For these reasons, we dismiss the petition in part for lack of jurisdiction and deny the
petition in remaining part.
2
Before the BIA, Menjivar also challenged the IJ’s conclusion that Menjivar was not entitled to sua sponte reopening
based on exceptional circumstances. In her petition to this court, Menjivar notes in her statement of the case that both
the IJ and the BIA concluded Menjivar failed to establish “exceptional circumstances” justifying reopening. But
Menjivar nowhere argues that the agency erred in reaching this conclusion. Thus, she has forfeited any challenge to
the agency’s determination that no exceptional circumstances warranted sua sponte reopening. See Suarez-Diaz v.
Holder, 771 F.3d 935, 945 (6th Cir. 2014) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation, are deemed waived.” (quoting United States v. Elder, 90 F.3d 1110, 1118 (6th Cir.
1996))).
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