Edwin Gustavo Molina-Avelar v. U.S. Attorney General

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-11619
Non-Argument Calendar
________________________
Agency No. A088-968-186
EDWIN GUSTAVO MOLINA-AVELAR,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 11, 2013)
Before MARTIN, JORDAN and FAY, Circuit Judges.
PER CURIAM:
Edwin Molina-Avelar, who is a native and citizen of El Salvador, seeks
review of the Board of Immigration Appeals’ (“BIA”) decision, affirming the
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Immigration Judge’s (“IJ”) denial of his motion to reopen his removal proceedings
under the Immigration and Nationality Act (“INA”). On appeal, he argues that the
BIA and the IJ should have reopened his in absentia removal proceedings because
he never received the initial notice to appear (“NTA”) or notice of his November
2010 removal hearing. For the reasons set forth below, we deny the petition.
I.
Molina-Avelar entered the United States on June 2, 2006, as a
nonimmigrant, and upon the expiration of his visa, he remained in the United
States without authorization. On October 23, 2008, the Department of Homeland
Security (“DHS”) issued Molina-Avelar a NTA for removal proceedings, and
mailed it to 8353 Cedros Avenue in Panorama City, California (the “Cedros Ave.
address”). The NTA notified Molina-Avelar that he must provide written notice to
the DHS of his mailing address, and that he must immediately notify the DHS
whenever his address changed by using a “Form EOIR-33.” The NTA warned
that, if Molina-Avelar failed to provide a current mailing address, the government
would not be required to provide him with written notice of his removal hearing.
Further, if he failed to attend the hearing, an IJ could issue a removal order in his
absence.
An initial removal hearing was scheduled for December 17, 2008. The
immigration court sent written notice of the hearing to Molina-Avelar at the
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Cedros Ave. address, but it was returned undelivered. On the date of the scheduled
hearing, the IJ entered an order administratively closing the case.
In April 2010, the DHS filed a motion to recalendar Molina-Avelar’s
removal hearing and to change the venue to Florida. In the motion, the DHS stated
that Molina-Avelar had submitted a Form EOIR-33, dated November 8, 2008,
which indicated that his address was “1393 SW 1ST 420A,” Miami, Florida (the
“Miami address”). In support, the DHS attached the Form EOIR-33, which was
signed 1 and indicated that Molina-Avelar had moved from the Cedros Ave. address
to the Miami address.
On June 28, 2010, the IJ granted the government’s motion and ordered a
change-of-venue to Miami. On July 15, 2010, the Miami immigration court mailed
a notice to Molina-Avelar at the Miami address that his removal hearing was
scheduled for November 10, 2010. Molina-Avelar failed to appear for the hearing,
and the IJ ordered him removed to El Salvador in absentia.
Approximately one year after the removal hearing, in December 2011,
Molina-Avelar, through counsel, filed a motion to reopen his removal proceedings
and to rescind the in absentia removal order against him. In the motion, Molina-
Avelar indicated that he did not attend the removal hearing because he was
unaware that he had been placed in removal proceedings. He further indicated
1
The printed name “Edwin Molina” appeared on the form, but the signature is illegible.
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that, after entering the United States in 2006, he had lived “continuously” at 13036
Sherman Way in North Hollywood, California (the “Sherman Way address”) with
his wife, Nereida Martinez, and their child. Molina-Avelar believed that the
removal proceedings had been initiated in Florida based on fraudulent conduct by a
notary public. Specifically, a notary public had applied for Temporary Protected
Status on Molina-Avelar’s behalf, and the application indicated that Molina-Avelar
lived “somewhere in [s]outh[] Florida.” Molina-Avelar subsequently discovered
the removal order when he was detained on unrelated charges.
In support of his motion, Molina-Avelar submitted an affidavit from his
wife, Martinez, declaring that her husband had lived with her at the Sherman Way
address since he came to the United States in 2006, and they never received notice
of removal proceedings in Florida. She stated that Molina-Avelar was a victim of
a fraudulent notary public who “preys on innocent and uninformed aliens.”
Molina-Avelar also submitted his and Martinez’s marriage license, which was
issued on April 25, 2007, and indicated that their address was 7457 Irvine Avenue
in North Hollywood, California (the “Irvine Ave. address”).
On December 29, 2011, the IJ issued a written decision, denying Molina-
Avelar’s motion to reopen. Specifically, the IJ found that Molina-Avelar’s
“unsupported contentions” did not justify the reopening of his removal
proceedings. Contrary to his allegations, the record established that Molina-
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Avelar, not a notary public, was responsible for the venue change to Miami
because he signed a Form EOIR-33, which indicated that he had relocated from the
Cedros Ave. address to the Miami address. Given these “undisputed facts,”
Molina-Avelar failed to provide support for his claim that a notary public was
responsible for his failure to appear at the hearing. Further, Molina-Avelar clearly
received the NTA because, after it was issued, he submitted the Form EOIR-33—a
form that is only applicable to individuals in removal proceedings. Unless he was
aware of the removal proceedings, Molina-Avelar would not have known to file
such a form.
Further, the IJ found that, because Molina-Avelar had received the NTA, he
was put on “actual notice” of the removal proceedings, including his obligation to
notify the DHS of any changes in his address and the consequences of failing to do
so. Thus, when the immigration court mailed notice of the November 2010
hearing to the Miami address, it complied with its obligation to attempt to deliver
notice to the last address provided by Molina-Avelar. Additionally, Molina-
Avelar’s assertion that he had always lived at the Sherman Way address was
contradicted by his marriage license, which provided a different California address.
Regardless, he never notified the DHS of the Sherman Way address during his
removal proceedings, and as such, the court had no obligation to provide him with
“effective notice” of the November 2010 hearing. For these reasons, the IJ found
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that Molina-Avelar could be charged with having received notice of his removal
proceedings and his removal hearing, and as such, it denied his motion to reopen
the proceedings.
Molina-Avelar appealed to the BIA, reasserting that he had no knowledge of
the Form EOIR-33 that he “supposedly” signed, and that the venue for his removal
proceedings was changed without his consent.
On February 28, 2012, the BIA dismissed the appeal, agreeing with the IJ
that the DHS had served Molina-Avelar with the NTA by regular mail on October
23, 2008, at the Cedros Ave. address. Further, the BIA noted that DHS records
indicated that Molina-Avelar had provided the Cedros Ave. address on his
application for Temporary Protected Status. Moreover, the BIA found that the
submission of a Form EOIR-33 to the DHS on November 8, 2008, with Molina-
Avelar’s name “strongly suggests” that he received the NTA. Additionally,
evidence that a hearing notice was sent to the Cedros Ave. address in December
2008, but was returned as undeliverable, corroborated the Form EOIR-33’s
statement that Molina-Avelar had moved. As to his claim regarding the notary, the
BIA noted that Molina-Avelar did not identify the notary, and he provided “very
sketchy information” regarding his business relationship with the notary. Further,
Molina-Avelar’s assertion that a notary “may have provided a false address on his
behalf” was unsupported by any credible evidence, and as such, the BIA would not
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disturb the IJ’s finding that he had received the NTA. However, despite receiving
notice of his obligation to provide the DHS with a current mailing address, he
failed to do so, and as such, he was not entitled to written notice of his removal
hearing. Additionally, the IJ did not err in changing the venue for his removal
proceedings to Miami because the change was based on information that Molina-
Avelar lived in Miami, and no evidence suggested that he was prejudiced by the
change of venue. Accordingly, the BIA affirmed the IJ’s denial of the motion to
reopen and dismissed Molina-Avelar’s appeal.
II.
When the BIA issues its own opinion, we review only that decision, except
to the extent that it expressly adopts the IJ’s decision or reasoning. Tang v. U.S.
Att’y Gen., 578 F.3d 1270, 1275 (11th Cir. 2009). Here, because the BIA issued its
own opinion, but explicitly adopted the IJ’s reasoning and factual findings, we
review both the BIA’s and the IJ’s decisions. See id. (reviewing the IJ’s decision
to the extent that the BIA found that its reasoning was supported by the record).
We review the BIA’s denial of a motion to reopen for an abuse of discretion.
Montano Cisneros v. U.S. Att’y Gen., 514 F.3d 1224, 1226 (11th Cir. 2008).
Under the abuse of discretion standard, we are limited to determining whether an
agency’s exercise of discretion was “arbitrary or capricious.” Id. (quotation
omitted). The BIA’s factual findings are considered “conclusive unless a
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reasonable factfinder would be compelled to conclude to the contrary.” Lonyem v.
U.S. Att’y Gen., 352 F.3d 1338, 1340 (11th Cir. 2003). In the context of a motion
to reopen, whether an alien received sufficient notice of his removal hearing is a
finding of fact. See Contreras-Rodriguez v. U.S. Att’y Gen., 462 F.3d 1314, 1315,
1317 (11th Cir. 2006) (noting that it is not this Court’s role to make factual
findings regarding an alien’s claim that he had not received notice of his removal
hearing). To the extent that the BIA’s decision was based on a legal determination,
we review the decision de novo. Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190,
1195 (11th Cir. 2006).
If an alien fails to attend a proceeding after being provided with written
notice under INA § 239(a)(1) and (2), 8 U.S.C. § 1229(a)(1) and (2), he shall be
ordered removed in absentia if the agency establishes by “clear, unequivocal, and
convincing evidence” that the written notice was properly provided and that the
alien is removable. INA § 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A). The INA
recognizes that service by mail is a proper form of notice. See INA § 239(c), 8
U.S.C. § 1229(c). Further, the BIA presumes receipt of a notice of hearing sent by
regular mail if “the notice was properly addressed and mailed according to normal
office procedures.” Matter of M-R-A-, 24 I. & N. Dec. 665, 673-74 (BIA 2008).
An alien bears an affirmative responsibility to keep the agency informed of
his correct, current address. INA § 265(a), 8 U.S.C. § 1305(a); Dominguez v. U.S.
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Att’y Gen., 284 F.3d 1258, 1260 (11th Cir. 2002). In fact, under 8 U.S.C.
§ 1229(a)(1)(F), an alien must immediately provide the government with an
address at which he may be contacted and must immediately provide notice of any
change of the alien’s address. INA § 239(a)(1)(F), 8 U.S.C. § 1229(a)(1)(F); see
also Dominguez, 284 F.3d at 1260. Given this duty, “notice to the alien at the most
recent address provided by the alien is sufficient notice,” justifying an in absentia
removal. Dominguez, 284 F.3d at 1260. By extension, an alien’s failure to provide
agency officials with a current address precludes an alien from prevailing on a
claim that the immigration court did not properly serve him with a notice of a
removal hearing. Id. at 1259-61 (denying petition for review of an alien who
alleged that she did not receive the notice of her hearing because it was undisputed
that notice was sent to her last known address).
The BIA did not abuse its discretion in affirming the IJ’s denial of Molina-
Avelar’s motion to reopen his in absentia removal proceedings. The record
supported the BIA’s and IJ’s factual finding that Molina-Avelar had received the
NTA in 2008, which notified him of his obligation to notify immigration
authorities of his address. Specifically, the NTA was issued on October 23, 2008,
and it indicated that Molina-Avelar should file a Form EOIR-33 to notify the DHS
if his address changed. Approximately two weeks later, a Form EOIR-33 was
submitted to the DHS, indicating that Molina-Avelar had moved from the Cedros
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Ave. address, where the NTA was sent, to the Miami address. Because the Form
EOIR-33 was submitted shortly after the NTA was issued, it appeared that Molina-
Avelar received the NTA, which referenced the form, and that he was aware of his
obligation to notify the DHS whenever his address changed.
Although Molina-Avelar asserts that he hired a notary public, who
fraudulently submitted the Form EOIR-33 without his knowledge or consent,
Molina-Avelar did not identify the notary, explain why he hired a notary, or
discuss how the notary was aware of his removal proceedings if he had not
received the NTA. Other than his wife’s affidavit, Molina-Avelar presented no
evidence to support his claim that an unidentified notary forged his signature on
the Form EOIR-33. Moreover, Martinez’s affidavit was inconsistent with other
evidence regarding where she and Molina-Avelar had lived in California, which
undermined her credibility. Specifically, she claimed that Molina-Avelar had lived
with her at the Sherman Way address since 2006, but their marriage license, which
was issued in 2007, indicated that they lived at the Irvine Ave. address.
Regardless, even if Molina-Avelar had never lived in Florida, he appears to
have been aware of his obligation to notify the DHS of his address as of October
2008, but he never provided notice that he lived at the Sherman Way address.
Moreover, based on the signed Form EOIR-33 that the DHS received in November
2008, the Miami address was his address of record. As such, the immigration court
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properly mailed written notice of the November 2010 removal hearing to the
Miami address, which was Molina-Avelar’s last known address. Dominguez, 284
F.3d at 1260. Because the immigration court provided sufficient notice to Molina-
Avelar, and he failed to appear for the removal hearing, the IJ was permitted to
order him removed in absentia. See id. Given Molina-Avelar’s failure to comply
with his duty to provide the DHS with his current address, the BIA did not abuse
its discretion in denying his motion to reopen his removal proceedings.
For the foregoing reasons, we deny Molina-Avelar’s petition for review.
PETITION DENIED.
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