                            NONPRECEDENTIAL DISPOSITION
                              To be cited only in accordance with
                                      Fed. R. App. P. 32.1




               United States Court of Appeals
                               For the Seventh Circuit
                               Chicago, Illinois 60604

                                Argued November 9, 2007
                                  Decided June 1, 2009

                                          Before

                            WILLIAM J. BAUER, Circuit Judge

                            DANIEL A. MANION, Circuit Judge

                            ANN CLAIRE WILLIAMS, Circuit Judge

No. 07-1119

MARISOL CISNEROS-CORNEJO,                          Petition for Review of a Decision of the
               Petitioner,                         Board of Immigration Appeals.

       v.
                                                   No. A75 821 432
ERIC H. HOLDER, JR., Attorney General
of the United States,
                      Respondent.




                                          ORDER

      When Marisol Cisneros-Cornejo did not appear at her removal hearing, an immigration
judge ordered her removed in absentia. Maintaining that she never received the notice
informing her of the hearing date, she asked the Board of Immigration Appeals to rescind the
removal order. However, the only evidence she offered in support of non-receipt was her own
N o. 07-1119                                                                             Page 2
affidavit. The BIA was therefore justified in declining to rescind the removal order, and we
deny her petition for review.

                                      I. BACKGROUND

       Marisol Cisneros-Cornejo is a Mexican citizen. Her parents are permanent residents of
the United States, and her father filed an approved relative petition on her behalf on October
13, 1994. On February 22, 2007, with the petition still unresolved, then twenty-eight-year-old
Cisneros-Cornejo illegally entered the United States. She took an Amtrak train to Chicago
where her uncle, Javier Cisneros, picked her up. Immigration and Customs Enforcement
(“ICE”) agents followed her uncle’s van and stopped it on the side of the road. Javier Cisneros
gave the agents his street address in Joliet, Illinois, and the agents wrote this address as
Cisneros-Cornejo’s address on her paperwork.

        A few days later, ICE Agent Martin Trevino came to the home of Cisneros-Cornejo’s
parents in Joliet. They did not live with Javier Cisneros, and it is not clear from the record how
Agent Trevino knew Cisneros-Cornejo’s parents’ address. During the interview, Agent Trevino
asked Cisneros-Cornejo questions about the date, place, and manner of her entry into the
United States. He also gave Cisneros-Cornejo his telephone number and asked her to telephone
him if she remembered any information that would be helpful to him. Finally, Agent Trevino
told Cisneros-Cornejo that she would receive another notice informing her of her hearing date.

       On March 22, 2007, Cisneros-Cornejo received a Notice to Appear mailed to her at her
uncle’s home. The Notice, however, did not contain a hearing date or time. Instead, the Notice
ordered her appearance on “a date to be set” and at “a time to be set.” The reverse side of the
Notice stated in part: “You are required to provide the INS, in writing, with your full name and
telephone number. You must notify the Immigration Court . . . whenever you change your
address . . . . Notices of hearing will be mailed to this address.”

       The record also contains a letter dated May 9, 2007, stating that Cisneros-Cornejo’s
hearing would be held on June 22, 2007, at 9:00 a.m. The letter is addressed to Marisol Cisneros-
Cornejo and lists her uncle’s street address as the address. At the bottom of the letter, an
Immigration Court staff member noted that the letter had been sent by mail on May 9, 2007.
Cisneros-Cornejo maintains that she did not receive this letter.

        Cisneros-Cornejo did not appear at the hearing on June 22. With no one present on
Cisneros-Cornejo’s behalf, the immigration judge ordered her removed in absentia. A few days
later, Cisneros-Cornejo’s uncle gave her an envelope mailed to her at his home. It contained
the immigration judge’s in absentia order of removal. Within a week, Cisneros-Cornejo filed a
motion to reopen and to rescind the removal order on the basis that she did not receive notice
of her hearing. The BIA denied her request, and she petitions us for review.
N o. 07-1119                                                                               Page 3
                                         II. ANALYSIS

       A. Cisneros-Cornejo exhausted her current argument.

        Cisneros-Cornejo argues that the BIA should have granted her motion to reopen because,
she maintains, she did not receive notice of her hearing date. The government contends that
we lack jurisdiction over Cisneros-Cornejo’s petition for review because she did not make this
argument to the BIA. Cisneros-Cornejo made a slightly different argument to the BIA, namely
that the notice of her hearing had been sent to the wrong address. She has since withdrawn that
argument.

        As a general matter, we may review an alien’s claims only if “the alien has exhausted
all administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1); see Jarad v.
Gonzales, 461 F.3d 867, 871 (7th Cir. 2006). As we have explained before, however, section
1252(d)(1)’s exhaustion requirement is not “jurisdictional” in that it is “not a limit on the set of
cases that the judiciary has been assigned to resolve.” Korsunskiy v. Gonzales, 461 F.3d 847, 849
(7th Cir. 2006). Because it is not jurisdictional in that sense, an agency can waive or forfeit an
exhaustion argument. Id. We also recognize an exception to the exhaustion requirement for
claims that the BIA is powerless to address, such as fundamental constitutional claims. Hadayat
v. Gonzales, 458 F.3d 659, 665 (7th Cir. 2006).

        In this case, Cisneros-Cornejo asks us to consider her claim despite her failure to raise
it in her brief to the BIA for another reason – because the BIA addressed the argument sua
sponte. We agree with her and with the majority of the circuits to have addressed the issue that
when the BIA sua sponte denies relief on a ground not raised by the alien, the failure to raise that
argument to the BIA does not preclude our review. See Sidabutar v. Gonzales, 503 F.3d 1116,
1120-22 (10th Cir. 2007); Ye v. Dep’t of Homeland Security, 446 F.3d 289, 296-97 (2d Cir. 2006);
Socop-Gonzalez v. I.N.S., 272 F.3d 1176 (9th Cir. 2001). But see Amaya-Artunduaga v. U.S. Atty.
Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (“[W]e think the goals of exhaustion are better served
by our declining to review claims a petitioner, without excuse or exception, failed to present
before the BIA, even if the BIA addressed the underlying issue sua sponte.”). As the Eleventh
Circuit put it, “[i]f the BIA deems an issue sufficiently presented to consider it on the merits,
such action by the BIA exhausts the issue as far as the agency is concerned and that is all §
1252(d)(1) requires to confer our jurisdiction.” Sidabutar, 503 F.3d at 1120. After all, when the
BIA has addressed an issue sua sponte, “it was exhausted to the extent it could be.” Nazarova
v. I.N.S., 171 F.3d 478, 489 (7th Cir. 1999) (Manion, J., dissenting on other grounds).

       B. The BIA was justified in denying the motion to reopen.

       Cisneros-Cornejo petitions for review from the denial of her motion to reopen her case,
in which the IJ had ordered her removed in absentia. Before an immigration judge can
commence in absentia proceedings, an alien must be properly served with notice of the hearing.
The relevant statutory provision, 8 U.S.C. § 1229(a)(2)(A), specifies that “written notice shall be
N o. 07-1119                                                                                  Page 4
given in person to the alien (or, if personal service is not practicable, through service by mail
to the alien or to the alien’s counsel of record, if any).” Service by mail “shall be sufficient if
there is proof of attempted delivery to the last address provided by the alien . . . .” 8 U.S.C. §
1229(c). If an alien is properly served with a hearing notice but does not attend, the alien will
be ordered removed in absentia if the government establishes “by clear, unequivocal, and
convincing evidence that the written notice was so provided” and the alien is removable. 8
U.S.C. § 1229a(b)(5)(A). Here, the immigration judge found that proper notice had been
provided and that Cisneros-Cornejo was removable.

       Cisneros-Cornejo then filed a motion to reopen the removal order that had been entered
against her in absentia. The INA provides that

       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 section (e)(1) of this section), 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 [section 1229(a)] 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.

8 U.S.C. § 1229a(b)(5)(C).

       Cisneros-Cornejo brought her motion to reopen under part (ii), maintaining she did not
receive proper notice. Proper service is not at issue in a situation like this one; instead, the
question on the merits is whether Cisneros-Cornejo received the notice. See Sabir v. Gonzales,
421 F.3d 456, 457 (7th Cir. 2005). And although a petitioner can be charged with having
received the notice when she “thwarts” the notice’s delivery, there is no indication that
happened here. Cf. Peralta-Cabrera v. Gonzales, 501 F.3d 837, 843 (7th Cir. 2007). Instead,
Cisneros-Cornejo simply maintains that she never received notice of her hearing date.

        Cisneros-Cornejo is asking us to review the denial of a motion to reopen, and we held
in Kucana v. Mukasey, 533 F.3d 534 (7th Cir. 2008), that the REAL ID Act removed our
jurisdiction to consider claims that the BIA abused its discretion when it declined to grant a
motion to reopen. The Supreme Court recently granted certiorari in Kucana, see 129 S. Ct. 2075
(2009), so it will let us know whether our ruling in that case was correct.

        In any event, we have said before that whether an alien received notice of her
deportation hearing implicates notions of due process. See Peralta-Cabrera, 501 F.3d at 843; see
also Nazarova v. I.N.S., 171 F.3d 478, 482 (7th Cir. 1999); cf. Patel v. Holder, 563 F.3d 565, 568 (7th
Cir. 2009). In this respect a “motion to reopen” a matter where an in absentia removal order was
entered on the basis of a lack of notice differs from a more run-of-the-mill motion to reopen.
N o. 07-1119                                                                               Page 5
See Peralta-Cabrera, 501 F.3d at 843 (applying de novo standard of review to motion to reopen
in absentia removal and noting other motions to reopen reviewed for abuse of discretion). There
is also no fixed time limit on filing a motion to reopen and rescind an order entered in absentia
on the basis that one failed to receive proper notice, unlike in a typical motion to reopen. See
Derezinski v. Mukasey, 516 F.3d 619, 620 (7th Cir. 2008). Compare 8 C.F.R. § 1003.23(b)(1) with 8
C.F.R. § 1003.23(b)(4)(ii).

        To the extent due process is implicated here, we would have jurisdiction to review that
constitutional claim. See Iglesias v. Mukasey, 540 F.3d 528, 530 (7th Cir. 2008); cf. Adebowale v.
Mukasey, 546 F.3d 893, 895 (7th Cir. 2008) (no due process claim when alien actually received
notice of hearing, even though notice stated it was for a removal hearing instead of an asylum
hearing); Derezinski v. Mukasey, 516 F.3d 619 (7th Cir. 2008) (noting that due process required
only efforts reasonably calculated to notify party to satisfy constitutional notice requirement).
But making it over the jurisdictional hurdle would only mean that we could review whether
the BIA’s conclusion that Cisneros-Cornejo did not meet her burden to rebut the presumption
of effective service meant she was denied due process.

        The only evidence Cisneros-Cornejo offered in support of her non-receipt was her own
affidavit asserting that she did not receive any notice of the hearing. Although a petitioner’s
affidavit of non-receipt is evidence, it is only weak evidence. Joshi v. Ashcroft, 389 F.3d 732, 736
(7th Cir. 2004). In Joshi, we assumed without needing to decide that the BIA could hold “that
the intended recipient’s affidavit of nonreceipt is not by itself sufficient proof of nonreceipt to
warrant a new removal hearing.” Id. More recently, we denied a petition for review where a
hearing notice was sent to the petitioner by certified mail and returned to the sender after
several delivery attempts, and the petitioner submitted an affidavit of non-receipt. Derezinksi,
516 F.3d at 619. We did not set aside the BIA’s conclusion that the petitioner had either received
notice of the hearing or evaded receipt. We suggested there, as we have before, that following
a certified letter with one sent by regular mail would increase the chances that the intended
recipient would receive it, but we recognized it was not a constitutional requirement. Id. at 622-
23.

       Here too, a notice sent by certified mail would have given everyone more assurance that
the notice was received, but it was not required. The BIA considered Cisneros-Cornejo’s
affidavit of non-receipt. But that was the only evidence she submitted. She did not, for
example, submit an affidavit from her uncle or from anyone else that may have resided at his
address stating that the May 9 letter had not reached her uncle’s residence, which might have
made a difference to the BIA. Cf. Matter of G-Y-R, 23 I & N Dec. 181, 189 (BIA 2001) (alien can
be charged with receiving notice if delivered to correct address even if alien did not see notice
himself). And, the BIA pointed out, she received other documents from the Department of
Homeland Security addressed to her at her uncle’s address, both before and after the May 9
N o. 07-1119                                                                          Page 6
letter. On this record, then, consistent with our decision in Joshi, we cannot say the BIA was
unjustified when it upheld her removal order.

                                    III. CONCLUSION

       For the foregoing reasons, Cisneros-Cornejo’s petition for review is DENIED.
