     Case: 09-60644     Document: 00511104268          Page: 1    Date Filed: 05/07/2010




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

                                                  FILED
                                                                             May 7, 2010
                                     No. 09-60644
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

SARA EDILMA CRUZ-PAZ, also known as Sara Edilma Cruz Paz de Alfaro,

                                                   Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                                   Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A079 038 802


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Sara Edilma Cruz-Paz (Cruz) petitions for review of the Board of
Immigration Appeals’s (BIA’s) decision denying her motion to reopen her
proceedings and rescind her 2002 order of removal, which was issued in
absentia. The Respondent has moved for summary affirmance, contending that
the issue is foreclosed by Gomez-Palacios v. Holder, 560 F.3d 354 (5th Cir. 2009).
Because the BIA adopted the immigration judge’s decision without a written
opinion, we review the immigration judge’s decision, Mikhael v. INS, 115 F.3d

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-60644

299, 302 (5th Cir. 1997), and do so for an abuse of discretion.                 See
Gomez-Palacios, 560 F.3d at 358.
      Cruz argues that she is entitled to rescission of her removal order because
she did not receive actual notice of the date and time of her 2002 removal
hearing and was not informed of her obligation to notify the immigration court
of a change of address. Cruz’s Notice to Appear, however, with which she was
personally served, warned her in the section captioned “Failure to appear” that
she was required to provide the Immigration and Naturalization Service with
her mailing address and to notify the immigration court of any change in her
address, as notices of hearing would be mailed to the address provided by her.
Cf. id. at 356.     Additionally, Cruz received oral notice in Spanish of the
consequences of a failure to appear. Cf. id. at 357.
      Cruz acknowledged that she had given immigration officials a New Mexico
address, knowing that she intended to only briefly reside there before moving to
California. Consequently, while the record evidence supports a finding that
Cruz did not receive actual notice of the hearing date, substantial evidence
supports the immigration judge’s finding that her failure to receive notice of the
hearing was owing to her failure to comply with her obligations to report the
address change. An alien is not entitled to rescission of a removal order where
the failure to receive actual notice of the time of the hearing is the result of the
alien’s failure to comply with the obligation to keep the immigration court
apprised of her current mailing address. See id. at 361. As such, Gomez-
Palacios forecloses relief.
      Cruz additionally argues that the immigration judge’s decision denying
her motion to reopen resulted in the denial of her due process rights. Cruz,
however, failed to raise this due process argument in her appeal to the BIA;
therefore, the claim is unexhausted, and we lack jurisdiction to review it. See
Townsend v. INS, 799 F.2d 179, 181 (5th Cir. 1986). Finally, Cruz argues that
she is entitled to the reopening of her removal proceedings because (1) she is

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                                No. 09-60644

permitted to enjoy the same benefits of residency as her spouse under the
Nicaraguan Adjustment and Central American Relief Act, and (2) she has
resided in the United States for eight years and has no criminal record. The
immigration judge, however, refused Cruz’s request to exercise his discretion to
reopen her proceedings in the interest of justice. We lack jurisdiction to review
an immigration judge’s discretionary decision declining to sua sponte reopen
deportation proceedings. See Enriquez-Alvarado v. Ashcroft, 371 F.3d 246,
249-50 (5th Cir. 2004).
      PETITION DENIED IN PART; DISMISSED IN PART; MOTION FOR
SUMMARY AFFIRMANCE GRANTED.




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