     Case: 18-60323       Document: 00514915579         Page: 1     Date Filed: 04/15/2019




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

                                     No. 18-60323                             FILED
                                   Summary Calendar                       April 15, 2019
                                                                         Lyle W. Cayce
                                                                              Clerk
JUAN MANUEL GARCIA-ORTIZ,

                                                  Petitioner

v.

WILLIAM P. BARR, U.S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A077 386 779


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Juan Manuel Garcia-Ortiz, a native and citizen of Guatemala, petitions
for review of the Board of Immigration Appeals’ (BIA) decision dismissing his
appeal from an immigration judge’s denial of his 2017 motion to reopen the
removal proceedings and rescind the 2004 in absentia order of removal entered
against him. The denial of a motion to reopen is reviewed under “a highly
deferential abuse-of-discretion standard”, and the decision of the BIA will be


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 18-60323

upheld “as long as it is not capricious, without foundation in the evidence, or
otherwise so irrational that it is arbitrary rather than the result of any
perceptible rational approach”. Gomez-Palacios v. Holder, 560 F.3d 354, 358
(5th Cir. 2009) (citation omitted). Questions of law are reviewed de novo;
factual findings, for substantial evidence; and such findings will be overturned
only if “the evidence compels a contrary conclusion”. Id.
      Garcia contends he did not receive notice of his removal hearing. He
claims: he provided a correct address; because of a transcription error on the
notice to appear (NTA), the notices of hearings were not delivered to him; and
he had no duty to correct the address on the NTA, and cannot be removed in
absentia if attempted delivery of the notices took place at an address different
from the one he provided.
      The record establishes Garcia was personally served with the NTA that
listed the erroneous address. Therefore, he had notice of the error upon his
receipt of the NTA.     The NTA explained, inter alia: the importance of
maintaining a valid address with the immigration court; the consequences of
failing to appear at the removal hearing; and, Garcia would not be entitled to
receive notice of his hearing if he failed to supply an address at which he could
be reached.
      Regardless of how the error in the address was introduced, Garcia was
obligated to correct the error. See Mauricio-Benitez v. Sessions, 908 F.3d 144,
148–49 (5th Cir. 2018), petition for cert. filed, 2019 WL 585625 (U.S. 6 Feb.
2019) (No. 18-1055); Gomez-Palacios, 560 F.3d at 360–61. He failed to do so;
and, therefore, he was not entitled to actual notice of his removal hearing. See
Mauricio-Benitez, 908 F.3d at 148–49; Gomez-Palacios, 560 F.3d at 360–61; see
also 8 U.S.C. § 1229a(b)(5)(B).




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                                  No. 18-60323

      Garcia maintains the instant case is distinguishable because, as
reflected in his file, the address on the NTA is different than the address that
he provided to immigration officers. He contends it should not be presumed
that the immigration court took adequate actions to give him notice where the
notices of hearing were not sent to the last mailing address he provided.
      Our court’s recent opinion in Mauricio-Benitez forecloses this claim. 908
F.3d at 148 (“[A]n alien’s statutory obligation to keep the immigration court
apprised of his current mailing address includes an obligation to correct any
errors in that address listed on the NTA. Failure to receive notice of a removal
hearing as a result of such an error is not grounds to reopen a removal
proceeding or rescind an in absentia removal order.” (footnote omitted)). As
noted, in the light of the NTA, Garcia knew the notices of hearing would be
sent to an erroneous address, but he took no action to correct the error.
Therefore, the immigration court reasonably could treat the address on the
NTA as the address to which the notices should be sent. See Mauricio-Benitez,
908 F.3d at 149; Gomez-Palacios, 560 F.3d at 360–61.
      In addition, Garcia has presented no evidence to support his contention
that he would have received the notices of hearing if they had been mailed to
the other address he provided, especially given that Garcia admitted he
provided a false name and date of birth on the same form he claims contained
his correct address. His failure to show he could receive mail at that address
defeats his claim. See 8 C.F.R. § 1003.23(b)(4)(iii)(B); 8 U.S.C. § 1229a(c)(7)(B).
      DENIED.




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