   Case: 09-60496       Document: 00511187370          Page: 1    Date Filed: 07/28/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            July 28, 2010
                                     No. 09-60496
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk




DEYSI DALILA CRUZ-DIAZ,

                                                   Petitioner,

versus

ERIC H. HOLDER, JR., U.S. Attorney General,

                                                   Respondent.




                          Petition for Review of an Order of
                          the Board of Immigration Appeals
                                  No. A075 868 046




Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*


       Deysi Cruz-Diaz, a native and citizen of Honduras, petitions for review of
an order of the Board of Immigration Appeals (“BIA”) affirming an order of the
immigration judge denying her motion to reopen removal proceedings. A “highly


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                 No. 09-60496

deferential abuse of discretion standard” applies in reviewing the BIA’s denial
of a motion to reopen. Lara v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000). We
will affirm the BIA’s decision as long as it is not capricious, without foundation
in the evidence, or otherwise so irrational that it is arbitrary rather than the re-
sult of any perceptible rational approach. See Singh v. Gonzalez, 436 F.3d 484,
487 (5th Cir. 2006). Although questions of law are reviewed de novo, this court
“accord[s] deference to the BIA’s interpretation of immigration statutes unless
the record reveals compelling evidence that the BIA’s interpretation is incorrect.”
Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997). The BIA’s factual findings are
reviewed under the substantial-evidence test, meaning that this court may not
overturn the BIA’s factual findings unless the evidence compels a contrary con-
clusion. Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994).
      Cruz-Diaz was ordered removed in absentia after she failed to appear for
her removal hearing. She maintains that her motion to reopen should have been
granted, because the government failed to prove that the consequences of her
failure to appear and her obligation to provide immigration officials with a cor-
rect address were explained to her in Spanish that she could understand. Those
provisions were included in a notice to appear (“NTA”) that was personally
served on Cruz-Diaz when she was detained and questioned by immigration offi-
cials. At that time, she provided them with a knowingly incorrect address to
which a superseding NTA containing the date and time of her hearing was
mailed and that was later returned undeliverable. Cruz-Diaz also argues that
her due process rights were violated because she did not receive notice of the
removal hearing and that her motion to reopen should have been granted be-
cause she made out a prima facie case for adjustment of status based on hard-
ship to her husband.
      According to 8 U.S.C. § 1229, an NTA must specify, inter alia, the require-
ment that the alien must immediately provide the Attorney General with a writ-
ten record of an address and telephone number at which the alien may be con-

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                                 No. 09-60496

tacted; the requirement that the alien must provide the Attorney General imme-
diately with a written record of any change of his address or telephone number;
the consequences of failure to provide address and telephone information; and
the consequences of the failure, except under exceptional circumstances, to ap-
pear at such proceedings. § 1229(a)(1). The statute does not explicitly require
that the NTA be in any language other than English. Id.
       An alien who fails to appear at a removal proceeding, “shall be ordered re-
moved in absentia” if the government “establishes by clear, unequivocal, and
convincing evidence” that notice was provided and that the alien is removable.
§ 1229a(b)(5)(A). Service of notice of the time and place of a removal hearing is
sufficient if mailed to the most recent address provided by the alien.         See
§ 1229a(b)(5)(A). The alien is not entitled to notice, however, if he fails to pro-
vide the required address information. § 1229a(b)(5)(B). An order of removal
entered in absentia may be rescinded upon a motion to reopen filed at any time
if the alien demonstrates that he did not receive notice of the hearing or was in
federal or state custody and the failure to appear was not his fault. § 1229a(b)-
(5)(C)(ii).
       The record reflects that the original NTA comported with the statutory
requirements. In addition, the record shows that Cruz-Diaz received oral notice
in Spanish, that she could understand, of the time and place of the hearing, in
this case a time and place “to be calendared,” as well as the consequences of her
failure to appear for the hearing and her obligation to provide a proper address.
The record further indicates that Cruz-Diaz acknowledged her receipt and un-
derstanding of the NTA by signature. Based on these facts, the BIA found that
Cruz-Diaz understood the warnings she received.
       The BIA’s factual finding is supported by substantial evidence in the rec-
ord. See Girma v. INS, 283 F.3d 664, 666 (5th Cir. 2002). Because Cruz-Diaz
was informed of her duty to provide the immigration court with her address and
failed to do so, she was not entitled to notice of the removal hearing. § 1229a(b)-

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(5)(B). Accordingly, the BIA did not abuse its discretion in denying the motion
to reopen. See Lara, 216 F.3d at 496.
      Cruz-Diaz’s due process argument likewise fails. See Gomez-Palacios v.
Holder, 560 F.3d 354, 361 n.2 (5th Cir. 2009). Finally, the BIA has the discretion
to deny a motion to reopen even if the alien has made out a prima facie case for
relief, 8 C.F.R. § 1003.2(a), and, as shown above, the BIA did not abuse that
discretion.
      Accordingly, the petition for review is DENIED.




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