                                              NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                   No. 09-2558


         DANIEL O. RAMOS-OLIVIERI,
                          Petitioner

                        v.

         ATTORNEY GENERAL OF THE
         UNITED STATES OF AMERICA,
                           Respondent


     PETITION FOR REVIEW OF AN ORDER
  OF THE BOARD OF IMMIGRATION APPEALS
           (Agency No. A095-833-985)
      Immigration Judge: Hon. Henry S. Dogin


      Submitted Under Third Circuit LAR 34.1(a)
                 September 14, 2010
                       _____
Before: SLOVITER, BARRY and SMITH, Circuit Judges

        (Opinion Filed: September 17, 2010)
                  ____________

                    OPINION
                  ____________
BARRY, Circuit Judge

      Petitioner Daniel Ramos-Olivieri, a native and citizen of Uruguay, entered the

United States in February 2001 as a nonimmigrant visitor with authorization to stay for

six months. He overstayed his visa. On April 6, 2004, the Department of Homeland

Security (“DHS”) issued a warrant for his arrest and took him into custody. Ramos was

personally served with a Notice to Appear (“NTA”), charging that he was removable

pursuant to 8 U.S.C. § 1227(a)(1)(B) as an alien who remained in the United States for a

time longer than permitted. The date and time of the removal hearing were to be set. The

NTA reflected Ramos’s current address in North Bergen, and, according to the NTA,

Ramos was orally notified in Spanish of the charges against him and the consequences of

failing to appear for his removal hearing. The NTA stated in English that an alien is

required to immediately inform the Immigration Court of a change in address.

      Ramos was released from custody on his own recognizance. As a condition of that

release, Ramos was not to change his place of residence without first securing written

permission from his immigration officer. Ramos’s signature appears on the Order of

Release following his acknowledgment that he understood his conditions of release.

      Six months later, in October, 2004, Ramos moved from his North Bergen

apartment without notifying immigration authorities of his change of address. The

Immigration Court sent him a Notice of Hearing by regular mail to the North Bergen



                                            2
address on or about December 4, 2004, for a hearing to take place on January 5, 2005.

The hearing took place in Ramos’s absence and he was ordered removed in absentia to

Uruguay.

       In March 2007, Ramos married a naturalized United States citizen, Susana

Pineyro. When the couple consulted an immigration attorney to begin the paperwork to

adjust his status, Ramos learned of the Order of Removal. In April 2007, he filed a

motion to reopen removal proceedings pursuant to 8 C.F.R. § 1003.23(b)(4)(iii)(A)(2).

He emphasized that he was requesting reopening because, had he known about the

hearing, he would have appeared. He stated that he was at his North Bergen apartment

for six months and waited a reasonable amount of time before he moved; however, he

never received notice of the hearing.

       The Immigration Judge (“IJ”) denied the motion to reopen. The IJ reasoned that

the NTA had been personally served on Ramos, and once an alien has been served with a

NTA, it is incumbent upon the alien to make U.S. Citizenship & Immigration Services

aware of any change of address. Furthermore, when Ramos was released from

immigration custody in April 2004, it was on the condition that he not change his place of

residence without first securing written permission from immigration authorities. The IJ

concluded that, because Ramos admitted that he moved prior to the mailing of his hearing

notice, and the record was devoid of any evidence that he complied with his obligation to



                                            3
notify the Immigration Court of a change in address, no notice of his hearing was

required. Thus, reopening was unwarranted.

       Ramos appealed to the Board of Immigration Appeals (“Board”), contending that

he did not actually receive notice of his removal hearing because he moved before it was

mailed to him, and he was not informed in Spanish that he was obligated to inform the

Immigration Court of any change of address. The Board dismissed his appeal. It

reasoned that the NTA, which explains the consequences of failing to appear, was read to

Ramos in Spanish, the hearing notice was sent to the address he provided, and an

immigration officer had certified that Ramos was notified that he was required to inform

the Immigration Court of any change of address. It also faulted Ramos for making no

effort over a three-year period to learn the status of his immigration proceedings. It held

that the law does not require written notice if an alien has failed to provide the address

required under 8 U.S.C. § 1229(a)(1)(F). See also 8 U.S.C. § 1229a(b)(5)(B) (“No

written notice shall be required under subparagraph (A) if the alien has failed to provide

the address required under [8 U.S.C. § 1229(a)(1)(F)].”); In re Villalba, 21 I. & N. Dec.

842, 845 (BIA 1997) (language contained in Order to Show Cause and Notice of Hearing,

which provided that notice of deportation hearings will be sent only to alien’s last known

address, and failure to provide an address may result in an in absentia hearing, is

reasonable construction of notice requirement). Albeit recognizing that Ramos was now



                                              4
married to a United States citizen, the Board concluded that Ramos was statutorily

ineligible to adjust his status because he failed to appear for his removal hearing, see 8

U.S.C. § 1229a(b)(7). It concluded, as well, that even if the record supported his claim

that he was not notified of his removal hearing, which it did not, Ramos’s motion to

reopen was untimely.

       Ramos petitioned for review, and the DHS filed an unopposed motion to remand

so that the Board could determine whether its decision should be reconsidered in light of

Santana Gonzalez v. Attorney General, 506 F.3d 274 (3d Cir. 2007). We granted the

motion.

       On remand, the Board again dismissed the appeal, concluding that Santana

Gonzalez was inapplicable and thus reconsideration was unwarranted. The Board

repeated much of what it had said before, emphasizing that Ramos was personally served

with the NTA, which was read to him in Spanish and included notification of the

requirement that he inform the Immigration Court of any change of address. Moreover,

Ramos was informed of this requirement when he was released from custody, and the

record was devoid of any evidence that he informed the Immigration Court or any

immigration officer that he had moved. The Board distinguished Santana Gonzalez by

noting that, although the alien there was no longer at the address she had provided, a

responsible person was available at the address to forward her mail. Because Ramos did



                                              5
not provide notice of a change of address, the Board again concluded that notice was not

required under 8 U.S.C. § 1229a(b)(5)(B).

       Ramos timely petitioned for review. We have jurisdiction under 8 U.S.C. §

1252(a), (b)(1). “We review the denial of a motion to reopen a removal order entered in

absentia for abuse of discretion.” Cabrera-Perez v. Gonzales, 456 F.3d 109, 115 (3d Cir.

2006) (citing INS v. Doherty, 502 U.S. 314, 323-24 (1992)). “Under the abuse of

discretion standard, the Board’s decision is reversible only if it is ‘arbitrary, irrational, or

contrary to law.’” Barker v. Ashcroft, 382 F.3d 313, 316 (3d Cir. 2003) (quoting Tipu v.

INS, 20 F.3d 580, 582 (3d Cir. 1994)).

       An alien must be provided written notice of his or her removal proceedings. 8

U.S.C. § 1229(a)(1). The notice must inform the alien of, among other things, “[t]he time

and the place at which the proceedings will be held.” 8 U.S.C. § 1229 (a)(1)(G)(i).

Written notice must be given to the alien in person, or, “if personal service is not

practicable, through service by mail.” 8 U.S.C. § 1229(a)(1), (2)(A). Written notice by

the Attorney General is sufficient if “provided at the most recent address provided” by the

alien. 8 U.S.C. § 1229a(b)(5)(A).

       Although written notice is sufficient if mailed to the most recent address provided

by the alien, the statute also provides that an in absentia removal order may be rescinded,

upon a motion to reopen filed at any time, where the alien demonstrates that he did not



                                                6
“receive” notice of the hearing. 8 U.S.C. § 1229a(b)(5)(C)(ii). In Santana Gonzalez, we

considered two questions: “(1) what presumption of receipt attaches to a notice of hearing

sent by regular mail; and (2) how an alien claiming non-receipt of a notice sent by regular

mail can rebut that presumption, thereby entitling her to an evidentiary hearing on that

claim.” 506 F.3d at 274-75. Santana Gonzalez holds that the fact that notice was sent by

regular mail to the last address provided by the alien does not necessarily establish that

the alien has received the notice under § 1229a(b)(5)(C)(ii). The word “receive” indicates

that the focus of the rescission inquiry, in contrast to the focus of the initial entry of the in

absentia order, is on the actual receipt of the required notice and not whether the notice

was properly mailed. Santana Gonzalez, 506 F.3d at 277.

       In Santana Gonzalez, we adopted a standard providing that a strong presumption

of receipt applies only when a notice from an Immigration Court is sent by certified mail;

a weaker presumption of receipt applies when the notice is sent by regular mail. Id. at

279. An alien’s affidavit claiming non-receipt of a notice sent by regular mail, along with

corroborating circumstantial evidence, may be sufficient to raise a factual issue requiring

an evidentiary hearing before the IJ. See id. at 280. But this surely does not mean that

the failure to receive notice of a removal hearing entitles an alien to rescission if that

failure is the result of the alien’s neglect of his or her obligation to keep the Immigration

Court informed of a current address. This is especially so when the obligation is also a



                                                7
condition of release. Santana Gonzalez does not hold that an alien is entitled to an

evidentiary hearing when the alien both fails to arrange for a responsible person who still

resides at the alien’s former address to forward all mail he or she receives and the alien

fails to notify immigration authorities of a change in address. Indeed, we did not order

the IJ to rescind the in absentia order in Santana Gonzalez, and we noted that “it is

significant that petitioner failed to follow the clear requirement that she give written

notice of any change in her address, a fact that needs to be considered by the IJ in making

the ultimate decision. Id. at 281; see also Gomez-Palacios v. Holder, 560 F.3d 354, 360

(5th Cir. 2009) (in absentia removal order would not be revoked where alien failed to

keep Immigration Court informed of his current mailing address); Popa v. Holder, 571

F.3d 890, 898 (9th Cir. 2009) (same).

       It is important to note, though, that in Santana Gonzalez, the record disclosed that

a responsible person, the alien’s uncle, remained at her former address to forward her

mail. 506 F.3d at 279. Unlike that alien, Ramos made no arrangements with a

responsible person to forward his mail nor did he provide the postal service with a

forwarding address. In addition, the alien in Santana Gonzalez endeavored to contact

immigration authorities to provide updated mailing information. Ramos made no such




                                              8
affirmative efforts, despite being notified of his obligation to do so in both the NTA and

as a condition of his release from custody.1

       Furthermore, the alien in Santana Gonzalez at all times sought a hearing to adjust

her status, a form of relief to which she was entitled under the Cuban Adjustment Act,

and, consequently, she “had little to gain by failing to appear at the hearing.” 506 F.3d at

280-81. We concluded that this corroborating circumstantial evidence, together with her

assertion of non-receipt, might be sufficient to rebut the less stringent presumption of

receipt. Id. at 281. Here, however, Ramos does not even assert that he was eligible for

any form of relief from removal (except voluntary departure) prior to his marriage to

Pineyro in March, 2007. He thus would have had an incentive to avoid his removal

hearing. Accordingly, an evidentiary hearing was not called for and the Board acted

within its discretion in denying his motion to reopen.

       Finally, although an alien may seek reopening in order to apply for adjustment of

status, the Board properly concluded that Ramos is statutorily ineligible for such relief for

a period of 10 years pursuant to 8 U.S.C. § 1229a(b)(7).

       For the foregoing reasons, we will deny the petition for review.




   1
     Sembiring v. Gonzales, 499 F.3d 981, 984 (9th Cir. 2007), on which Ramos also
relies, involved an alien whose address did not change, and thus is distinguishable as
well.
                                               9
