                                                                                FILED
                                                                    United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                         Tenth Circuit

                           FOR THE TENTH CIRCUIT                         September 5, 2018
                       _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
MILTON A. GUEVARA-VILLACORTA,

      Petitioner,

v.                                                         No. 18-9508
                                                       (Petition for Review)
JEFFERSON B. SESSIONS, III, Attorney
General,

      Respondent.
                       _________________________________

                           ORDER AND JUDGMENT*
                       _________________________________

Before BRISCOE, HOLMES, and MATHESON, Circuit Judges.
                  _________________________________



      Milton Guevara-Villacorta, a native and citizen of El Salvador, petitions this

court for review of an order of the Board of Immigration Appeals (BIA) affirming the

immigration judge’s decision to deny his motion to reopen his removal proceedings.

Exercising jurisdiction pursuant to 8 U.S.C. § 1252(a)(1), we deny the petition for

review.


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                              I

      Guevara-Villacorta entered the United States without inspection on or about

November 11, 2000. In September of 2003, Guevara-Villacorta filed with the

Immigration and Naturalization Service (INS) two separate forms: a Form I-821,

Application for Temporary Protected Status, and a Form I-765, Application for

Employment Authorization. On September 17, 2003, INS mailed notice of receipt of

the Form I-765 to Guevara-Villacorta at P.O. Box 414, Aurora, Colorado. On

January 23, 2004, the United States Citizenship and Immigration Services mailed to

Guevara-Villacorta at the same address a notice that his Form I-765 had been denied.

      On or about November 3, 2004, the Department of Homeland Security (DHS)

issued a Notice to Appear to Guevara-Villacorta and mailed it to the same Aurora

address. The Notice to Appear indicates it was served on Guevara-Villacorta on or

about November 9, 2004. DHS sent a notice of removal hearing to the same address,

but that was returned as undeliverable.1 On December 30, 2004, an immigration

judge (IJ) ordered Guevara-Villacorta to be removed in absentia for failing to appear

at the removal hearing. On September 13, 2007, DHS apprehended Guevara-

Villacorta. Guevara-Villacorta was physically removed from the United States to El

Salvador on October 22, 2007.

      Guevara-Villacorta subsequently reentered the United States illegally on three

occasions—twice in 2009 and once in 2012—and each time was removed.


      1
        In an affidavit submitted with his motion to reopen, Guevara-Villacorta
alleged that at some point he discontinued payment on and use of P.O. Box 414.
                                          2
      On October 13, 2015, Guevara-Villacorta filed a motion to reopen and rescind

the in absentia removal order that was entered by the IJ on December 30, 2004. He

claimed in his motion that he did not receive proper notice of the removal hearing.

The IJ initially granted the motion to reopen. But DHS filed a motion for

reconsideration and the IJ granted the motion for reconsideration and denied

Guevara-Villacorta’s motion to reopen.

      Guevara-Villacorta appealed to the BIA. The BIA remanded the case to the IJ

for factual findings regarding Guevara-Villacorta’s alleged lack of notice of the

removal hearing, as well as for a determination of whether Guevara-Villacorta

waived the opportunity to assert his lack-of-notice claim in light of his failure to seek

reopening upon first learning of the IJ’s in absentia removal order.

      On remand, the IJ found that Guevara-Villacorta did not receive actual or

constructive notice of the notice of removal hearing, and did not become aware of the

IJ’s in absentia removal order until he was first removed in 2007. But the IJ

concluded that Guevara-Villacorta had nevertheless waived his right to assert a lack-

of-notice claim because he failed to assert that claim until approximately eight years

after his initial removal from the United States in 2007, and only after he had been

physically removed three additional times from the United States.

      Guevara-Villacorta appealed and the BIA affirmed the IJ’s decision. The BIA

noted that Guevara-Villacorta “conceded . . . he became aware of the in absentia

removal order in 2007 when he was first removed from the United States to El

Salvador.” AR000004. The BIA further noted that Guevara-Villacorta failed to

                                            3
“provid[e] any explanation whatsoever as to why he waited 8 years to file [his]

motion to reopen.” Id. The BIA in turn concluded that Guevara-Villacorta “did not

file his motion to reopen with due diligence upon learning of the . . . in absentia order

of removal, and that although [he] may have had an incentive to attend his removal

hearing, he did not act in good faith in seeking to reopen the[] proceedings.” Id. The

BIA ultimately concluded that Guevara-Villacorta did “not present[] a basis to reopen

proceedings” and that he had not established “that an exceptional situation exist[ed]

which would warrant that the[] proceedings . . . be reopened sua sponte.”

AR000005.

      Guevara-Villacorta now petitions for review of the BIA’s decision. We have

jurisdiction over the BIA’s denial of the motion to reopen. Infanzon v. Ashcroft, 386

F.3d 1359, 1361-62 (10th Cir. 2004).

                                                II

      We review the BIA’s denial of Guevara-Villacorta’s motion to reopen for an

abuse of discretion. See Maatougui v. Holder, 738 F.3d 1230, 1239 (10th Cir. 2013).

“The BIA abuses its discretion when its decision provides no rational explanation,

inexplicably departs from established policies, is devoid of any reasoning, or contains

only summary or conclusory statements.” Id. (quotation marks omitted). “The BIA

does not abuse its discretion when its rationale is clear, there is no departure from

established policies, and its statements are a correct interpretation of the law, even

when the BIA’s decision is succinct.” Id. (quotation marks omitted).



                                            4
       The Supreme Court has emphasized that motions to reopen immigration cases

are “plainly disfavor[ed]” and the petitioner bears a “heavy burden” to show the BIA

abused its discretion. INS v. Abudu, 485 U.S. 94, 110 (1988). That is because, to

begin with, “[t]here is a strong public interest in bringing litigation to a close as

promptly as is consistent with the interest in giving the adversaries a fair opportunity

to develop and present their respective cases.” Id. at 107. Further, “the reasons for

giving deference to agency decisions on petitions for reopening . . . in other

administrative contexts apply with even greater force in the [immigration] context.”

Id. at 110.

       Guevara-Villacorta argues that the BIA abused its discretion in denying his

motion to reopen and rescind the in absentia order of removal based on lack of due

diligence. More specifically, he argues that lack of due diligence is not a valid

statutory ground for denying a motion to reopen and rescind.

       To resolve Guevara-Villacorta’s arguments, we turn to 8 U.S.C. § 1229a(b)(5),

which outlines the “Consequences of failure to appear” at a removal proceeding and

provides, in pertinent part:

       (A) In general
       Any alien who, after written notice required under paragraph (1) or (2)
       of section 1229(a) of this title has been provided to the alien or the
       alien’s counsel of record, does not attend a proceeding under this
       section, shall be ordered removed in absentia if the Service establishes
       by clear, unequivocal, and convincing evidence that the written notice
       was so provided and that the alien is removable (as defined in
       subsection (e)(2)). The written notice by the Attorney General shall be
       considered sufficient for purposes of this subparagraph if provided at
       the most recent address provided under section 1229(a)(1)(F) of this
       title.

                                             5
      (B) No notice if failure to provide address information
      No written notice shall be required under subparagraph (A) if the alien
      has failed to provide the address required under section 1229(a)(1)(F) of
      this title.
      (C) Rescission of order
      Such an order may be rescinded only--
              (i) upon a motion to reopen filed within 180 days after the date of
              the order of removal if the alien demonstrates that the failure to
              appear was because of exceptional circumstances (as defined in
              subsection (e)(1)), or
              (ii) upon a motion to reopen filed at any time if the alien
              demonstrates that the alien did not receive notice in accordance
              with paragraph (1) or (2) of section 1229(a) of this title or the
              alien demonstrates that the alien was in Federal or State custody
              and the failure to appear was through no fault of the alien.
                  The filing of the motion to reopen described in clause (i) or (ii)
                  shall stay the removal of the alien pending disposition of the
                  motion by the immigration judge.

8 U.S.C. § 1229a(b)(5)(A)-(C).

      We reject Guevara-Villacorta’s arguments as contrary to this statutory

language. In particular, Guevara-Villacorta misreads the language of

§ 1229a(b)(5)(C) as requiring a removal order to be rescinded if the requirements of

subparagraph (i) or (ii) are met. In fact, however, the requirements of subparagraphs

(i) and (ii) simply establish a threshold that must be satisfied before an order can

permissibly be rescinded. Whether or not an order is actually rescinded, however,

lies within the discretion of the IJ and the BIA. That much is made clear by

subsection (C)’s use of the phrase “may be rescinded.” The word “may” in this

phrase implies discretion. Jennings v. Rodriguez, 138 S. Ct. 830, 844 (2018). Had

Congress intended for a removal order to automatically be rescinded upon a

petitioner’s satisfaction of the requirements of subparagraphs (i) or (ii), it would


                                            6
instead have used the word “shall” in this phrase. Id. Thus, simply because

Guevara-Villacorta may have satisfied the requirements of subparagraph (ii) did not

necessarily entitle him to have the in absentia removal order rescinded.

      We also reject Guevara-Villacorta’s argument that due diligence is not a factor

that can be considered by the BIA in considering a motion to reopen. As we have

noted, § 1229a(b)(5)(C) outlines the minimum conditions that must be satisfied for a

removal order to be rescinded. But neither it nor any other part of § 1229a specifies

the conditions under which a motion to reopen shall be granted. Therefore, as was

the case when motions to reopen were governed solely by regulation (prior to the

enactment of § 1229a), “[t]he granting of a motion to reopen is . . . discretionary.”

United States v Doherty, 502 U.S. 314, 323 (1992). And, given Guevara-Villacorta’s

undisputed and unexplained eight-year delay in seeking reopening, we are not

persuaded that the BIA abused its discretion in refusing to grant the motion to reopen

and rescind the in absentia removal order.2

      The petition for review is DENIED.


                                              Entered for the Court


                                              Mary Beck Briscoe
                                              Circuit Judge

      2
         Guevara-Villacorta also argues in his appeal that the fact he did not receive
actual or constructive notice of the removal proceedings in 2004 resulted in a
violation of his rights under the Due Process Clause of the Fifth Amendment to the
United States Constitution. Because we conclude the BIA did not abuse its discretion
in refusing to reopen and rescind the in absentia removal order, we need not address
this argument.
                                           7
