                                          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)
                       ____________

Lauren Anselowitz, Esq.
Frank & York
60 Park Place
Suite 1010
Newark, NJ 07102
Counsel for Petitioner


Marion E. Guyton, Esq.
Eric H. Holder, Jr., Esq.
Thomas W. Hussey, Esq.
Joanna L. Watson, Esq.
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044

Anthony P. Nicastro, Esq.
United States Department of Justice
Office of Immigration Litigation
8040N
1331 Pennsylvania Avenue, N.W.
Washington, DC 20530-0000

Counsel for Respondent
                         ____________

                  OPINION OF THE COURT
                       ____________

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,

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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 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.

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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 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 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,

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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 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

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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 “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 condition of release.

                                 6
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 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

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.
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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.




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