               Vacated by Supreme Court, April 27, 2009



                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-2118


SOLOMON DEBESSAY TESFAGABER,

                 Petitioner,

          v.

ERIC H. HOLDER, JR., Attorney General,

                 Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Submitted:   March 25, 2009                  Decided:   April 23, 2009


Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.


Petition denied by unpublished per curiam opinion.


Laura Tuell Parcher, Christian G. Vergonis, Juliet Johnson
Karastelev,    JONES  DAY,   Washington,   D.C.,   for Petitioner.
Michael F. Hertz, Acting Assistant Attorney General, Linda
Wernery,    Assistant   Director,    Scott   Rempell,  Office   of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Solomon Debessay Tesfagaber, a native and citizen of

Ethiopia,   petitions        for   review      of    an   order    of   the    Board    of

Immigration      Appeals     (“Board”)      dismissing       his    appeal     from    the

immigration judge’s order denying his motion to reopen and to

rescind the in absentia removal order.                    We deny the petition for

review.

            We review the denial of a motion to reopen for abuse

of   discretion.        8   C.F.R.   §    1003.23(b)(1)(iv)          (2008);     INS    v.

Doherty, 502 U.S. 314, 323-24 (1992); Barry v. Gonzales, 445

F.3d 741, 744 (4th Cir. 2006).                 A denial of a motion to reopen

must   be   reviewed        with   extreme      deference,         since   immigration

statutes    do    not       contemplate        reopening     and     the      applicable

regulations disfavor such motions.                   M.A. v. INS, 899 F.2d 304,

308 (4th Cir. 1990) (en banc).                      This court will reverse the

denial of a motion to reopen only if the denial is “arbitrary,

capricious, or contrary to law.”                Barry, 445 F.3d at 745.           When,

as here, the Board affirmed the immigration judge’s decision to

deny the motion to reopen, the court reviews that decision and

the immigration judge’s decision to the extent the Board relied

upon it.      Niang v. Gonzales, 492 F.3d 505, 511 n.8 (4th Cir.

2007).

            A removal order issued in absentia may be rescinded

“upon a motion to reopen filed within 180 days after the date of

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the order of removal if the alien demonstrates that the failure

to appear was because of exceptional circumstances (as defined

in   subsection   (e)(1)     of    this      section).”    See      8    U.S.C.

§ 1229a(b)(5)(C)(i).    Section 1229a(e)(1) provides that:

     The   term   “exceptional         circumstances”  refers   to
     exceptional circumstances        (such as battery or extreme
     cruelty to the alien or          any child or parent of the
     alien, serious illness          of the alien, or serious
     illness or death of the         spouse, child, or parent of
     the   alien,   but   not        including    less  compelling
     circumstances) beyond the       control of the alien.

          It is uncontested that Tesfagaber did not file the

motion to reopen within 180 days.            Insofar as he argues that the

time period is subject to equitable tolling, this is not an

issue he raised before the Board and is not properly before this

court because it was not exhausted.             Gonahasa v. INS, 181 F.3d

538, 544 (4th Cir. 1999).         Even if he had exhausted the argument

before the Board, he did not argue that he was diligent in his

efforts to keep current with his immigration proceedings after

the Board remanded the action to the immigration judge.                   See,

e.g., Barry v. Mukasey, 524 F.3d 721, 724-25 (6th Cir. 2008)

(describing   factors      to     consider     when   determining       whether

equitable tolling is appropriate).

          An in absentia removal order may be rescinded at any

time “if the alien demonstrates that the alien did not receive

notice” of the hearing either by service in person or by mail,

except that if the notice specified a new time and date for the

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hearing, written notice is not required if the alien failed to

provide       a      current          mailing          address.             8      U.S.C.

§ 1229a(b)(5)(C)(ii).            However, Tesfagaber failed to keep the

immigration       court    current      with      his    mailing        address.      See

Dominguez v. U.S. Atty Gen., 284 F.3d 1258, 1260-61 & n.4 (11th

Cir. 2002)        (holding that an alien who does not actually receive

notice due to a failure to provide a current mailing address

cannot demonstrate that he did not receive notice in accordance

with paragraph (1) or (2) of § 1229(a) because § 1229a(b)(5)(B)

states that “[n]o written notice shall be required . . . if the

alien has failed to provide the address required under section

1229(a)(1)(F) of this title.”) (emphasis added); see also Gomez-

Palacios v. Holder, __ F.3d __, __, 2009 WL 388943, *4 (5th Cir.

2009) ([I]f the alien’s failure to receive notice is “due to his

neglect of his obligation to keep the immigration court apprised

of his current mailing address [it] does not mean that the alien

did not receive notice.”) (emphasis added); Sabir v. Gonzales,

421 F.3d 456, 459 (7th Cir. 2005) (“[A]n alien should not be

able to make himself unreachable, and then later ask to have his

case   reopened      because     he    did       not    receive    notice.”).      Thus,

because it was shown that the notice was sent to his last known

address and Tesfagaber did not notify the immigration court of a

current address at which he could be contacted, he cannot now

seek   rescission     of   the    removal        order    based    on    not    receiving

                                             4
notice.        Thus, we find the Board did not abuse its discretion in

affirming the immigration judge’s denial of Tesfagaber’s motion

to reopen.           Nor do we find Tesfagaber was denied due process.

See, e.g, Rusu v. INS, 296 F.3d 316, 321-22 (4th Cir. 2002) (the

fundamental requirement of due process is the opportunity to be

heard     at     a     meaningful      time    and       manner)     (emphasis         added).

Clearly,       Tesfagaber       was    provided      with      the   opportunity        to    be

heard,     which        he   missed     due    to        his   failure      to    keep       the

immigration court informed of a current mailing address.

               Insofar as Tesfagaber claims he is entitled to relief

under the Convention Against Torture (“CAT”), because he was

found removable for having committed an aggravated felony, we do

not have jurisdiction to review the immigration judge’s factual

findings in this regard.               Saintha v. Mukasey, 516 F.3d 243, 248-

49 (4th Cir.), cert denied, 129 S. Ct. 595 (2008).                               We further

find that the Board’s decision not to rescind the in absentia

removal order would not have an unconscionable result.                                    See,

e.g., Singh v. INS, 295 F.3d 1037, 1040 (9th Cir. 2002) (alien

was the beneficiary of an approved visa petition and would not

have been deported but for his failure to appear).

               Accordingly,       we    deny       the   petition     for     review.         We

dispense        with     oral    argument      because         the    facts      and     legal




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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                  PETITION DENIED




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