                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             JAN 24 2005
                              FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

    LESLY ARACELY COELLO-
    AMADOR,

                Petitioner,
                                                         No. 04-9545
    v.                                                (No. A73 375 471)
                                                     (Petition for Review)
    JOHN ASHCROFT, Attorney General,

                Respondent.


                              ORDER AND JUDGMENT          *




Before EBEL , BALDOCK , and KELLY , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

         Petitioner Lesly Aracely Coello-Amador, a native and citizen of Honduras,

seeks review of a Board of Immigration Appeals (BIA) order denying her motion


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
to reopen removal proceedings and also challenges the BIA’s refusal to exercise

its sua sponte power to reopen proceedings. This court affirms the denial of the

BIA’s order and, for lack of jurisdiction, does not consider petitioner’s alternative

claim for relief.

I.    Background

      Petitioner was admitted to the United States on July 7, 1994, on a six-

month nonimmigrant visa. She overstayed the duration of the visa and, on

September 6, 1995, she was personally served with an Order to Show Cause. The

Order, which was written in both English and Spanish, charged her with

deportability and informed her that she would be required to appear for a hearing

to be calendared and noticed at a later date. It warned that if she failed to appear,

she would “be ordered deported    in [her] absence   if it is established that [she is]

deportable and [she had] been provided the appropriate notice of the hearing.”

Admin. R. at 235. The Order also stated that petitioner was “required by law to

provide immediately in writing an address (and telephone number, if any) where

[she] could be reached” and notice of the hearing would be mailed only to the last

address provided by petitioner.   Id. Petitioner provided the mailing address of

P.O. Box 6524, Sheridan, Wyoming.

      A hearing notice was sent by certified mail to that address, advising

petitioner of an immigration hearing scheduled for January 18, 1996, in Denver,


                                          -2-
Colorado. The notice was received and signed for by an individual named Frank

Schultz. Petitioner did not appear for the hearing. Rather than proceeding        in

absentia , the Immigration Judge adjourned the hearing to February 1, 1996,

giving petitioner a second chance to appear. A second hearing notice was sent to

petitioner at the same address and it, too, was received and signed for by

Mr. Schultz.

      Petitioner again failed to appear for her hearing. The Immigration Judge

proceeded in absentia , found that petitioner was deportable as charged, and

ordered her deported to Honduras. A copy of the order was sent to petitioner at

the same address. Later, it was returned to the Immigration Court with a

handwritten “return-to-[s]ender” designation.      Id. at 213. Also, Mr. Schultz

visited the INS office in Casper, Wyoming, to state that petitioner had moved out

and he did not know her current address.

      More than three years later, petitioner filed a motion to reopen the   in

absentia proceeding. The Immigration Judge determined that petitioner “was

given every opportunity to attend. The notice was served at the proper address.

[She] did not report a new address. She has not satisfied the statutory

requirements for reopening.”    Id. at 161. He therefore denied the motion to

reopen. Petitioner appealed to the BIA, which summarily affirmed the

Immigration Judge’s decision without opinion.


                                           -3-
II.   Discussion

      This court reviews the agency’s decision on a motion to reopen for abuse of

discretion. “The BIA abuses its discretion when its decision provides no rational

explanation, inexplicably departs from established policies, is devoid of any

reasoning, or contains only summary or conclusory statements.”       Gurung v.

Ashcroft , 371 F.3d 718, 720 (10th Cir. 2004) (quotations omitted). Petitioner

argues that her motion to reopen was improperly denied, because she had no

notice of the immigration hearing.

      As background information, petitioner explains that she married her United

States citizen husband, Larry Branson, before her visa expired. She then

separated from her husband to live with Mr. Schultz at the Sheridan, Wyoming

address. Later, she had a disagreement with Mr. Schultz and returned to her

husband. She left Mr. Schultz’s home before receiving the hearing notices.       1




1
       The above summary of petitioner’s living arrangements is based on the
account given in her appellate brief. We note, however, that the administrative
record provides several, perhaps conflicting, versions. The Record of Deportable
Alien compiled by INS Special Agent Terence D. Wilson on September 6, 1995,
states that petitioner informed him that she came to the United States to visit Mr.
Schultz in Sheridan, left him and married Mr. Branson, then returned to
Mr. Schultz, filing for divorce from Mr. Branson. Admin R. at 219. An affidavit
signed by petitioner’s attorney, dated January 6, 2000, was filed in connection
with the motion to reopen. The affidavit states that both petitioner and her
husband temporarily moved to Sheridan to stay “with a friend . . . in furtherance
of Mr. Branson’s employment as a long distance trucker” and that petitioner left
her temporary residence “due to an argument with her friend.”    Id. at 103.
                                                                       (continued...)

                                          -4-
Except for this period of separation, petitioner and her husband have lived

together for ten years.

       Petitioner’s lack of receipt of the hearing notices has no legal significance.

As this court has previously stated, “[a] notice to appear is sufficient, both for due

process and statutory purposes, if it is sent by regular mail to an alien’s contact

address of record.”   Id. at 721. The notice sent to petitioner “complied with the

immigration statutes and the Constitution.”         Id. Further, there was no abuse of

discretion in the denial of petitioner’s motion to reopen. To be eligible, petitioner

would have had to “‘present substantial and probative evidence . . . demonstrating

that there was improper delivery or that      nondelivery was not due to [her] failure

to provide an address where [she] could receive mail.’        ” Id. at 722 (quoting

Fuentes-Argueta v. INS , 101 F.3d 867, 871 (2d Cir. 1996) (per curiam) (further

quotation omitted, emphasis added, and alteration in original).




1
 (...continued)
Petitioner’s affidavit dated October 2, 2000, amplified this story. In it, she
averred that she had been living with a “girlfriend” in Sheridan because her
husband was away on a job. Id. at 62. She “moved out of [the] girlfriend’s house
. . . part[ing] [on] bad terms,” so she “did not leave a forwarding address. Later
[she] found out that [the girlfriend] had passed away.”    Id. at 63.

        There is no need to reconcile these varying accounts. The common thread
is that petitioner moved from Sheridan without fulfilling her obligation to change
her address of record before the in absentia hearing took place.

                                              -5-
In sum, petitioner’s argument based on failure to receive notice is squarely

foreclosed by Tenth Circuit authority.

      Petitioner also claims that the BIA abused its discretion by declining to

reopen proceedings under its    sua sponte power. Generally, “we have no

jurisdiction to consider petitioner’s claim that the BIA should have exercised its

sua sponte power to reopen [her] case.”       Belay-Gebru v. INS , 327 F.3d 998, 1000

(10th Cir. 2003); see also Infanzon v. Ashcroft, 386 F.3d 1359, 1361 (10th Cir.

2004). This decision “‘is committed to [the BIA’s] unfettered discretion,’” so

that “‘the very nature of the claim renders it not subject to judicial review.’”

Belay-Gebru, 327 F.3d at 1000-01 (quoting           Luis v. INS. , 196 F.3d 36, 40 (1st Cir.

1999)). Further, our jurisdiction to review         in absentia orders is limited to “the

issues of the validity of the notice provided to the alien, to the reasons for the

alien’s not attending the proceeding, and to whether or not clear, convincing, and

unequivocal evidence of deportability has been established.” 8 U.S.C.

§ 1252b(c)(4) (1996).   2
                            In short, this court does “not have jurisdiction to consider

petitioner’s claim that the BIA should have         sua sponte reopened the proceedings.”

Infanzon , 386 F.3d at 1361.



2
       Because petitioner was placed in immigration proceedings in 1995, the
1996 version of § 1252b is applicable to her case. The provision has been
repealed by Pub. L. 104-208, Div. C, Title III, § 308(b)(6) (Sept. 30, 1996), 110
Stat. 3009-615.

                                              -6-
      The decision of the Board of Immigration Appeals is AFFIRMED, and the

petition for review is DENIED.



                                               Entered for the Court



                                               David M. Ebel
                                               Circuit Judge




                                     -7-
