                                              NOT PRECEDENTIAL



      IN THE UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT

                    ________________

                       NO. 09-4119
                    ________________

                JOHNNY MACEDO-DIAZ,
                          Petitioner

                             v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
                                         Respondent

                     _______________

         On Petition for Review of an Order of the
               Board of Immigration Appeals
                     No. A071-488-212
       Immigration Judge: Hon. Margaret Reichenberg

                    ________________

       Submitted Pursuant to Third Circuit LAR 34.1(a)
                     November 2, 2010

       BEFORE: SCIRICA, STAPLETON and ROTH,
                   Circuit Judges

                 (Opinion Filed:11/5/2010 )


                     _______________

                OPINION OF THE COURT
                   ________________
STAPLETON, Circuit Judge:

       Petitioner is a native and citizen of Peru who entered the United States without

inspection on or about April 30, 1989. He here seeks review of a decision of the BIA

affirming an IJ’s denial of his motion to reopen his removal proceedings.

       On March 12, 1992, petitioner was personally served with an order to show cause

at a date and time to be thereafter set why he should not be removed. On that occasion,

he provided the INS with his address: 19 Brook Street, Mahwah, NJ 07430. The INS

sent notices to him at that address via certified mail on February 24, 1994; April 5, 1994;

April 29, 1994; July 1, 1994; and July 19, 1994, advising him of hearings scheduled

before an IJ. Hearings were scheduled for April 24, 1994; July 18, 1994; and August 5,

1994. Each notice was returned as undeliverable because the addressee had moved and

failed to leave a forwarding address. Petitioner did not appear at any of the hearings, and

he was ordered removed in absentia on August 5, 1994.

       On May 27, 2009, nearly fifteen years after the order of removal, petitioner filed a

motion to reopen the removal proceedings in order to seek cancellation of removal. The

only statement in petitioner’s brief to the IJ regarding his failure to appear stated that he

“failed to appear in the Immigration Court because he was young, he became confused

about the date, and because he was afraid to go to Court.” App. at 151. Petitioner’s brief

neither alleged facts nor raised arguments relating to the service of the notice or his




                                               2
change of address. On June 24, 2009, the IJ denied the motion to reopen, concluding as

follows:

              Based on his last known address, this Court properly issued
              and served on Respondent the five hearing notices sent by
              certified mail with return receipt. All the hearing notices
              were returned to this Court only because Respondent had
              moved, and he left no address. By law, Respondent was
              legally obligated to immediately notify this Court as to any
              changes or corrections to the “19 Brook Street” address.
              Matter of Grijalva, 21 I. & N. Dec. at 33; see INA §§
              242B(a)(1)(F)(i)-(ii),(4),(c)(1)-(2). Respondent failed to meet
              his legal obligations.

App. at 8 (emphasis in original).

       On appeal, the BIA affirmed the IJ’s “determination that the respondent failed to

notify the Immigration Court of his change of address, and that service of the notice of

deportation hearing was proper.” App. at 5. While the BIA acknowledged that there may

have been no actual receipt of notice, it held that the respondent was ineligible for

rescission of his in absentia order of removal because he had thwarted delivery of notice

by relocating and failing to provide a change of address.

       In denying reopening, the BIA further noted that petitioner had not asserted in his

original motion that he actually failed to receive notice of the August 1994 hearing and

that, while his brief on appeal had stated that he had moved away from the Brook Street

address and had advised the Immigration Court, the administrative record was devoid of

evidence of an address change notification of any kind.

       We will deny the petition for the reasons given by the BIA. See 8 U.S.C. §

1252b(a)(1)(F)(ii), (c)(2) (1992) (requiring that “the alien must provide the Attorney


                                              3
General immediately with a written record of any change of the alien’s address,” and

providing that “written notice [by certified mail] shall be considered sufficient if provided

at the most recent address provided”); 1 Maghradze v. Gonzales, 462 F.3d 150, 153-55 (2d

Cir. 2006) (“[E]ven assuming that an alien could rebut the presumption that properly-

provided notice was actually received, the alien is deemed to be in constructive receipt of

properly-provided notice – and hence ineligible for rescission of his in absentia order of

removal – if he thwarted delivery . . . by relocating and failing to provide a change of

address.”); Gomez-Palacios v. Holder, 560 F.3d 354, 360 (5th Cir. 2009) (holding that

where an alien’s “failure to receive actual notice of the time of his postponed hearing was

the result of not complying with his obligation to keep the immigration court apprised of

his current mailing address[,] [s]uch a failure is grounds for denying rescission of a

removal order”); Sabir v. Gonzales, 421 F.3d 456, 459 (7th Cir. 2005) (“An alien should

not be able to make himself unreachable, and then later ask to have his case reopened

because he did not receive notice.”). 2



       1
         Because petitioner was placed in proceedings prior to the enactment of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. § 1252b
applies to his case. See Luntungan v. Attorney Gen., 449 F.3d 551, 556 (3d Cir. 2006)
(“The old statute continues to apply to aliens who were placed in proceedings before
April 1, 1997, the effective date of IIRIRA.”).
       2
         The holding of the BIA, and those of our sister Courts of Appeals, are not
inconsistent with our decision in Santana Gonzalez v. Attorney General, 506 F.3d 274
(3d Cir. 2007). In Santana Gonzalez, the hearing notices were sent by regular mail and
were not returned. The petitioner claimed non-delivery. There accordingly was a dispute
of fact as to whether the petitioner had received the notices. The IJ and BIA denied the
petitioner’s motions to reopen the proceedings and rescind the removal order. In the
course of doing so, they concluded that she had failed to rebut the “presumption of

                                             4
       Petitioner faults the BIA for failing to analyze whether there were “exceptional

circumstances” responsible for his failing to attend. However, where the motion to

reopen has been filed more than 180 days after the removal order was entered,

“exceptional circumstances” will not justify rescission of an in absentia removal order. 8

U.S.C. § 1252b(c)(3)(A) (1992).

       Also contrary to petitioner’s contentions, the BIA did not engage in impermissible

fact finding when it relied on the absence in the administrative record of any evidence of

a change of address notification in affirming the determination of the IJ. Nor do we find

any violation of petitioner’s rights under the due process clause. The only relief

petitioner currently seeks is cancellation of removal. Due process does not extend to a

hearing for an alien on the merits of discretionary relief. Hernandez v. Gonzales, 437

F.3d 341, 345-46 (3d Cir. 2006).

       Accordingly, we will deny the petition for review.




effective delivery.” We granted the petition for review, holding that the presumption
applied was appropriate for certified mail cases only and that petitioner should have been
held to a lesser burden in her effort to rebut the presumption that arises from dispatch of
notice by regular mail. We remanded for further proceedings. At the conclusion of our
opinion, we limited our ruling to the burden of rebutting the presumption of effective
delivery in a regular mail case and expressly reserved for the IJ’s consideration the effect,
if any, of a failure to comply with “the clear requirement” of providing notice of a change
of address. Id. at 281. Here, there is no dispute that the notices never reached petitioner,
and the IJ and BIA took into account the requirement that petitioner provide notice of a
change of address.

                                             5
