     Case: 08-60007     Document: 00511022622          Page: 1    Date Filed: 02/08/2010




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

                                                  FILED
                                                                          February 8, 2010

                                       No. 08-60007                    Charles R. Fulbruge III
                                                                               Clerk

SMAROLEE ELIZABETH GAROY, also known as Sherilee Elizabeth Garoy,

                                           Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL

                                           Respondent




                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                 BIA No. A70 857 833


Before GARWOOD, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
        Petitioner Smarolee Elizabeth Garoy (“Garoy”) seeks review of an order of
the Board of Immigration Appeals (“the BIA”) denying her motion to reopen
proceedings and rescind an in absentia order of deportation entered against her
in 1993. We deny the petition.




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                       I. FACTS AND PROCEEDINGS
      In January 1993, Garoy, a native and citizen of Belize, attempted to enter
the United States (the “U.S.”) without a visa. She was detained at the border by
officers of the former Immigration and Naturalization Services (“INS”). The
following day, INS officers personally served Garoy with an order to show cause
(“OSC”),   charging    her   as   deportable   for   entry   by   fraud   or   willful
misrepresentation of a material fact, viz., that she was a U.S. citizen. The OSC
stated that Garoy would be required to appear before an immigration judge (“IJ”)
for a deportation hearing to be held at a date and time “to be calendared.” An
INS officer read the OSC to Garoy and provided her with copies of it in both
English and Spanish. The officer also provided Garoy with a change-of-address
form and explained that it was her responsibility to provide the immigration
court with written notice of any change of address, as her failure to do so could
result in a deportation order being entered against her even in her absence if the
IJ concluded that the evidence clearly established her deportability. Garoy
signed release documents acknowledging her receipt and understanding of the
OSC. She provided her address as “1650 West June Way, Chicago, Illinois
60626" and was released on her own recognizance.
      About one month later, the IJ sent a notice of hearing (“NOH”) by certified
mail to Garoy at the Chicago address that she had provided, alerting her that
her deportation hearing would take place on March 31, 1993. Several days later,
the NOH was returned to the IJ as undeliverable. Garoy did not appear for the
scheduled deportation hearing, and the IJ conducted the proceedings in her
absence. On April 2, 1993, the IJ issued a written opinion concluding that (1)
Garoy had been properly served with notice of the hearing but had failed to


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appear, and (2) the documentary evidence established Garoy’s deportability by
“clear, convincing, and unequivocal evidence.” Accordingly, the IJ ordered that
Garoy be deported to Belize. A copy of the decision was sent to Garoy’s last
known address, but — like the NOH — it was later returned as undeliverable,
stamped “Return to sender, attempted — not known.” Garoy claims that she
was unaware of the IJ’s order until almost five years later, when, shortly after
her wedding in 1998, her husband filed a family-based visa petition on her
behalf.
      In 2006, about eight years after the time that she claims she first learned
of the deportation order — and thirteen years after the order was first issued —
Garoy filed a motion with the IJ to reopen the proceedings and rescind the in
absentia deportation order. Claiming that she had never received actual notice
of the deportation hearing, Garoy also sought an adjustment of status based on
the approval of her husband’s earlier visa petition, which, according to Garoy,
made her eligible for relief that had been unavailable at the time of her
deportation hearing. In addition, Garoy also requested a change of venue to Los
Angeles, California, explaining that she no longer resided in Chicago.
      In an affidavit attached to her motion, Garoy conceded that she and
several other persons had attempted to enter the U.S. without visas. Although
Garoy admitted that a man in her group had claimed that all of the members
were U.S. citizens, she insisted that she had never made such a claim personally.
Garoy acknowledged that she had signed “some paperwork” on her release from
detention, but claimed that she had not understood the significance of the
paperwork or of her signature on it. Garoy also attached to her motion a copy
of the approval of her visa petition, her husband’s naturalization certificate, her


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marriage certificate, and her application for adjustment of status.           The
Department of Homeland Security (“DHS”) opposed her motion.
      After reviewing the record evidence, the IJ denied Garoy’s motion to
reopen the proceedings. The IJ stated that notice of Garoy’s deportation hearing
had been properly sent via certified mail to the only address that she had
provided to the immigration court. As Garoy had not notified the court of any
change of address, the IJ concluded that she had been properly provided with
notice but had failed to appear, thus defeating her request to reopen the
proceedings based on a lack of notice.
      Without filing a full administrative appellate brief, Garoy appealed to the
BIA in a two-sentence statement entitled “Reasons for Appeal.”            In her
statement, Garoy claimed that the IJ had erred in denying her motion to reopen
for two reasons: (1) She had not received actual notice of her deportation
hearing; and (2) she was eligible for adjustment of status based on her 1997
marriage to a U.S. citizen. In response to Garoy’s appeal, the DHS filed a motion
for summary affirmance of the IJ’s order.
      The BIA dismissed Garoy’s appeal and affirmed the IJ’s denial of her
motion to reopen.    As an initial matter, the BIA noted that the INS had
personally served Garoy with the OSC, which instructed her that she had to
provide the immigration court with written notification of any change of her
address.    The BIA noted that Garoy had acknowledged receipt and
understanding of the OSC and had provided the Chicago address. The BIA also
found persuasive the fact that Garoy had requested a change of venue to Los
Angeles, as she had never before provided the immigration court with any
information related to her residence there. Accordingly, the BIA concluded that


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Garoy had failed to demonstrate that she was entitled to rescission of the in
absentia order of deportation. The BIA also ruled that Garoy was time-barred
from seeking adjustment of status, as the marriage underlying her purported
eligibility for such an adjustment had not occurred until 1997 — long past the
deadline for filing a motion to reopen seeking new relief.
                                II. LAW AND ANALYSIS
       In reviewing the BIA’s denial of a motion to reopen, we apply a highly
deferential abuse-of-discretion standard.1 As we have previously explained,
motions to reopen immigration proceedings are generally disfavored.2 “This is
especially true in a deportation proceeding, where, as a general matter, every
delay works to the advantage of the deportable alien who wishes merely to
remain in the United States.” 3 We will affirm the BIA’s decision to deny such a
motion unless the decision is capricious, without foundation in the evidence, or
otherwise so irrational that it is arbitrary rather than the result of any
perceptible approach.4 Further, we review the BIA’s factual findings under the
substantial evidence test, meaning that we may only overturn those findings if
the evidence not only supports but compels a contrary conclusion.5                      And,
although we review questions of law de novo, we “accord deference to the BIA’s



       1
         Lara v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000); see Osuchukwu v. INS, 744 F.2d
1136, 1141 (5th Cir. 1984) (“The standard is whether the [BIA] has acted within the bounds
of an abundant discretion granted it by Congress.”).
       2
           Ghassan v. INS, 972 F.2d 631, 638 (5th Cir. 1988).
       3
           INS v. Doherty, 502 U.S. 314, 323 (1992).
       4
           Singh v. Gonzalez, 436 F.3d 484, 487 (5th Cir. 2006).
       5
           Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994).

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interpretation of immigration statutes unless the record reveals compelling
evidence that the BIA’s interpretation is incorrect.” 6
       Under 8 U.S.C. § 1229a(b)(5)(A)7 , an undocumented immigrant who does
not attend a deportation hearing after being provided written notice of that
hearing “shall be ordered removed in absentia if the [government] establishes by
clear, unequivocal, and convincing evidence that the written notice was so
provided and that the alien is removable.” Written notice to an undocumented
immigrant “shall be considered sufficient ... if it was provided at the most recent
address” furnished by the immigrant.8 The government need not establish that
written notice was actually furnished if the undocumented immigrant has failed
to provide a current mailing address.9
       Garoy contends that the BIA erred in upholding the IJ’s deportation order,
as she never received actual notice of the deportation proceedings. As we have
previously explained, however, an undocumented immigrant’s “failure to receive
actual notice of a removal hearing due to his neglect of his obligation to keep the
immigration court apprised of his current mailing address does not mean that
[he] ‘did not receive notice’ under § 1229a(b)(5)(C)(ii).” 10              Here, the record
evidence shows that the IJ sent notice of the proceedings via certified mail to the


       6
            Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997).
       7
         Garoy’s deportation proceedings were brought under the Immigration and Nationality
Act, which preceded two major legislative acts affecting immigration proceedings — the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and the REAL ID Act
of 2005. For ease of reference, we cite the current codification of the relevant rules.
       8
            8 C.F.R. § 1003.26(d).
       9
            8 U.S.C. § 1129a(b)(5)(A), (B).
       10
            Gomez-Palacios v. Holder, 560 F.3d 354, 360 (5th Cir. 2009).

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only address that Garoy had provided in her release documents. Garoy has
offered no evidence that the Chicago address that she provided to the IJ was in
fact her mailing address at the time or that she had not already moved to a
different address. Indeed, Garoy admits that she now resides in Los Angeles but
has never provided the immigration court with a change-of-address notification
related to her residence there. Accordingly, we conclude that there is substantial
evidence to support the BIA’s ruling, viz., that Garoy’s failure to receive actual
notice of the proceedings does not entitle her to rescission of the deportation
order, as her lack of actual notice resulted from her own failure to provide the
immigration court with a current or valid address.
      For the first time on review, Garoy also contends that the INS failed to
prove her deportability by clear, convincing, and unequivocal evidence.
Although Garoy did not directly raise this issue before the BIA, she now urges
us to conclude that the IJ erroneously relied on an unauthenticated I-213 form
stating only that members of Garoy’s group had falsely claimed U.S. citizenship.
Garoy concedes that she did attempt to enter the country with the group and
that at least one of the members of the group had claimed that all of the group
members were U.S. citizens, but she maintains that she herself never made such
a claim. Garoy never raised this issue before either the IJ or the BIA, though,
and she only briefly referenced it in her affidavit. Under 8 U.S.C. § 1252(d), we
may review a final order of removal by the BIA “only if ... the alien has
exhausted all administrative remedies.” As we have explained, “[a]n alien fails
to exhaust his administrative remedies with respect to an issue when the issue
is not raised in the first instance before the BIA — either on direct appeal or in




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a motion to reopen.” 11 An alien’s failure to raise an issue before the BIA “serves
as a jurisdictional bar to our consideration of the issue.”12 As Garoy failed to
exhaust her administrative remedies on this issue by not raising it before the
BIA, we lack jurisdiction to consider it on review.
       We also lack jurisdiction to review Garoy’s contention that the BIA failed
to consider evidence that she did not understand the immigration court’s
requirement that she provide written notification of any change to her address.
Again, the only time Garoy ever alluded to this issue before either the IJ or the
BIA was in a single sentence in her affidavit attached to her original motion to
reopen. She did not reference this issue in either her briefing to the IJ or her
terse, two-sentence statement of “Reasons for Appeal” to the BIA. Garoy did not
exhaust her administrative remedies on this issue, and, as a result, we may not
consider it on review.
       Finally, we agree with the BIA that Garoy is not entitled to reopen the
proceedings for an adjustment of status based on her 1997 marriage. As the BIA
noted in its holding, such a motion to reopen is generally subject to a 90-day
filing deadline.13 Garoy’s in absentia deportation order was entered on April 2,
1993. The marriage through which she now seeks to apply for adjustment of
status did not occur until 1997, long after the 90-day filing deadline had passed.
Nevertheless, Garoy also contends that she should not be bound by the filing



       11
            Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th Cir. 2001).
       12
            Id. at 452.
       13
         8 C.F.R. § 1003.23(b). Alternatively, the statute also provides that such a motion to
reopen will be considered timely if filed “on or before September 30, 1996.” Id. Garoy’s 2006
motion, however, was clearly filed after the September 1996 deadline.

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deadline because she seeks both rescission and adjustment of status. But, as
discussed above, Garoy’s request to reopen for rescission was properly denied,
and we perceive no reversible error in the BIA’s holding.
                             III. CONCLUSION
      For the foregoing reasons, Garoy’s petition for review is
DENIED.




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