                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 18a0355n.06

                                          No. 18-3087

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

 LEONARDO NOE MORALES-GONZALEZ; )                                             FILED
 SHERLYN SACAY MORALES-DE LEON,            )                             Jul 17, 2018
                                           )                        DEBORAH S. HUNT, Clerk
       Petitioners,                        )
                                           )
                                                              ON PETITION FOR REVIEW
 v.                                        )
                                                              FROM THE UNITED STATES
                                           )
                                                              BOARD OF IMMIGRATION
 JEFFERSON B. SESSIONS, III, U.S. Attorney )
                                                              APPEALS
 General,                                  )
                                           )
       Respondent.                         )




       Before: SUTTON, McKEAGUE, and KETHLEDGE, Circuit Judges.

       KETHLEDGE, Circuit Judge. Leonardo Morales-Gonzalez and his daughter Sherlyn

Morales-De Leon argue that the Board of Immigration Appeals erred when it affirmed an

immigration judge’s decision denying their motion to reopen their removal proceedings. We reject

their arguments and deny their petition for review.

                                                I.

       In November 2016, Border Patrol agents arrested Morales-Gonzalez and Morales-De

Leon—citizens of Guatemala—as they crossed the border from Mexico into the United States.

The next day, an agent gave Morales-Gonzalez two forms, one for him and one for his daughter,

who was then three years old. Those forms (entitled “Notice to Appear”) explained that he and

his daughter were required to attend a hearing with an immigration judge, that the immigration
No. 18-3087
Morales-Gonzalez, et al. v. Sessions

court would send a notice of the time and place of the hearing to their address, and that he was

required to tell the court if they changed their address. The forms also noted that the judge could

order them removed if they failed to show up for their hearing. Morales-Gonzalez signed each

form twice: once to “request an immediate hearing” and again to acknowledge that he had been

given the form in person by an agent who had explained—in Spanish—“the consequences of

failure to appear” for the hearing. Morales-Gonzalez told an immigration officer that, once he and

his daughter were released, their address would be 300 Dixie Drive, Cleveland, Tennessee.

       The government then released Morales-Gonzalez and Morales-De Leon and the

immigration officer mailed a letter to their address. The letter recited that their hearing would be

held at an immigration court in Memphis, Tennessee and that Morales-Gonzalez must “report any

changes in [their] address” to that court. A month later, the immigration court sent another letter—

also to the address on Dixie Drive—that stated the date and time of their hearing. That letter was

returned to the court as undeliverable. Morales-Gonzalez and his daughter thereafter failed to

appear for their hearing, and the immigration judge ordered them removed from the United States.

       Morales-Gonzalez and Morales-De Leon later filed a motion to reopen their removal

proceedings. The immigration judge denied the motion, and the Board of Immigration Appeals

affirmed without a written opinion. This petition for review followed.

                                                II.

       The Board affirmed the immigration judge without a written opinion, so we review the

judge’s decision directly for an abuse of discretion. See Denko v. I.N.S., 351 F.3d 717, 723 (6th

Cir. 2003).




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                                                 A.

       Morales-Gonzalez and Morales-De Leon argue that the immigration judge should have

reopened their removal proceedings because, they say, they never received notice of their hearing.

Under the Immigration and Nationality Act, an immigration judge may reopen those proceedings

if (among other things) the alien did not receive proper written notice of their hearing. See 8 U.S.C.

§ 1229a(b)(5)(C)(ii). But “proceedings will not be reopened” if the alien “fails to keep his or her

address current with the Immigration Court” and as a result “fails to receive a hearing notice.”

Sanchez v. Holder, 627 F.3d 226, 231, 233 (6th Cir. 2010) (interpreting 8 U.S.C. § 1252b(c), the

predecessor to § 1229a(b)(5)(B), and holding that the two statutes are “materially the same” and

“similarly construed”).

       Here, the immigration court sent notice of the date and time of the removal hearing to the

address that Morales-Gonzalez himself provided. By that time, however, he and his daughter had

moved to a new address without telling the court. The reason why they never received the notice,

therefore, is that Morales-Gonzalez failed to keep his address current with the immigration court.

Hence he cannot reopen his or his daughter’s removal proceedings based on a lack of notice.

       Morales-Gonzalez counters that no one told him to keep his address current with the

immigration court. But even the premise of that contention is mistaken. The immigration judge

found that Morales-Gonzalez had received a copy of the notices to appear, which instructed him

to “notify the Immigration Court immediately . . . whenever you change your address.” That

finding is supported by substantial evidence: Morales-Gonzalez signed the notices to appear,

which recited that he had been personally served with them and that “[he] will be provided with a

copy of this form”; a border patrol agent also signed the notices; and nowhere in Morales-




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Gonzalez’s affidavit does he dispute that he received the notices to appear. See Gaye v. Lynch,

788 F.3d 519, 525 (6th Cir. 2015).

       Morales-Gonzalez next asserts that he did not know where to send his new address because

no one told him which immigration court was handling his case. When the government sends a

letter to the last address provided by the alien, however, then the alien is presumed to have received

it. See Thompson v. Lynch, 788 F.3d 638, 643 (6th Cir. 2015). Here, the immigration court sent

Morales-Gonzalez a letter saying that his hearing would be held in Memphis and that he should

send any changes in his address to that court. The court sent that letter to the Dixie Drive address—

which was the last address provided by Morales-Gonzalez—and it was not returned as

undeliverable. Thus we presume that Morales-Gonzalez received it and that he had been told to

update his address with the immigration court in Memphis.

       Finally, Morales-Gonzalez says that—even though he moved from the Dixie Drive

address—he nonetheless met the Act’s requirement to provide an address where he and his

daughter could “be contacted.” See 8 U.S.C. § 1229(a)(1)(F)(i). But that argument fails on its

own terms, since the person residing at Dixie Drive refused to receive Morales-Gonzalez’s mail.

So that address was not one at which he could “be contacted.” See id.

                                                 B.

       Morales-Gonzalez next argues that he was deprived of due process because no one

explained his “rights and obligations” to him in Spanish. Due process requires the government to

provide notice that is reasonably calculated, under the circumstances, to inform an alien of the

proceedings to remove him from the United States. See Scorteanu v. I.N.S., 339 F.3d 407, 413

(6th Cir. 2003) (citation omitted). Personal service of written notice to a non-English speaker




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satisfies due process by giving the recipient an opportunity to have the notice translated. See Singh

v. Holder, 749 F.3d 622, 626 (7th Cir. 2014).

       A border patrol agent personally served Morales-Gonzalez with two notice-to-appear

forms, which contained detailed information about his and his daughter’s removal proceedings.

Moreover, the agent explained to Morales-Gonzalez—in Spanish—that the judge could order him

and his daughter removed if they failed to show up for their hearing. Thus the government

provided notice—i.e., personal service of the notice-to-appear forms and the verbal warning—

reasonably calculated to inform Morales-Gonzalez and Morales-De Leon of their rights and

obligations during the removal proceedings. See id.

       Morales-Gonzales contends that, under the rule of lenity, the Act should be interpreted to

require the government to provide written notice in the alien’s native language.                 Yet

Morales-Gonzalez identifies nothing in particular in the Act’s text that is ambiguous. Hence this

argument fails. See Kawashima v. Holder, 565 U.S. 478, 489 (2012).

       Finally, Morales-Gonzalez and Morales-De Leon argue that the Board violated its own

regulation—8 C.F.R. § 1003.1(e)—when it assigned their appeal to a single member, rather than

to a three-member panel. That regulation generally requires the Board to assign all cases to a

single member, but allows the Board to assign cases to a panel under six circumstances. See 8

C.F.R. § 1003.1(e)(6). Even when one or more of those circumstances are present, however,

assignment to a panel is “not mandatory.” See Amezola-Garcia v. Lynch, 846 F.3d 135, 141 (6th

Cir. 2016). Thus the Board did not violate the regulation when it assigned the petitioners’ appeal

to a single member.

       The petition for review is denied.




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