                                                             [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________          FILED
                                               U.S. COURT OF APPEALS
                            No. 09-14612         ELEVENTH CIRCUIT
                                                     MAY 3, 2010
                        Non-Argument Calendar
                                                      JOHN LEY
                      ________________________
                                                       CLERK

                        Agency No. A098-946-377

YOUN MUN HEE,


                                                                     Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                   Respondent.


                      ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                       _________________________

                              (May 3, 2010)

Before BLACK, HULL and PRYOR, Circuit Judges.

PER CURIAM:
      Youn Mun Hee, a citizen of South Korea, petitions for review of the Board

of Immigration Appeals’s (“BIA”) dismissal of his appeal of the Immigration

Judge’s (“IJ”) order denying his motion to reopen removal proceedings. After

review, we deny the petition for review.

                           I. BACKGROUND FACTS

      In June 2006, Hee was discovered in the United States after he was arrested

by police in DeKalb County, Georgia. On June 27, 2006, an immigration official

interviewed Hee and prepared a Form I-213 “Record of Deportable/Inadmissible

Alien.” Hee admitted that he had entered the United States illegally by walking

across the U.S. border with Canada, stated that he was amenable to removal and

requested a hearing before an Immigration Judge. During the interview, Hee

reported his address as 908 Glenridge Lane in Nashville, Tennessee.

      On the same day, Hee was served with a Notice to Appear (“NTA”)

indicating that his hearing would be in Atlanta, Georgia at a date and time to be set.

The NTA also listed Hee’s address as 908 Glenridge Lane in Nashville and

indicated that his notice of the hearing would be sent to the address Hee had

provided. The NTA warned Hee, inter alia, that: (1) he was “required to provide

the [Immigration and Naturalization Service (“INS”)], in writing, with [his] full

mailing address and telephone number”; (2) if his address or telephone number

changed during the course of immigration proceedings, Hee must “notify the
                                           2
Immigration Court immediately by using Form EOIR-33”; (3) if Hee failed to

submit Form EOIR-33 and did not “otherwise provide an address” at which he

could be reached, the government was not required to provide him with written

notice of his hearing; and (4) if Hee failed to appear at his hearing, the Immigration

Judge might enter a removal order in his absence.

      On July 15, 2008, Hee’s wife, a naturalized United States citizen, submitted

a Form I-130 “Petition for Alien Relative,” to the Department of Homeland

Security (“DHS”) so that Hee could apply for an adjustment of status to that of a

lawful permanent resident. Hee’s wife was represented by counsel in connection

with the Form I-130 petition. On the form, Hee’s wife indicated that Hee’s address

was 6734 Mimosa Circle in Tucker, Georgia and that he had lived at that address

since October 2007. Hee’s wife also indicated on the form that Hee was in

removal proceedings in Atlanta in May 2008. Nowhere on the form did Hee’s wife

indicate that Hee’s Tucker, Georgia address was a change of address.

      On July 23, 2008, the Immigration Court mailed a Notice of Hearing

(“NOH”) to Hee’s Nashville, Tennessee address, stating that Hee’s hearing would

be held on September 17, 2008. The NOH was returned as “not deliverable.” The

return envelope indicated that it could not be forwarded. When Hee failed to

appear at his hearing, the IJ ordered Hee removed in absentia.



                                          3
      In December 2008, Hee moved the IJ to reopen his removal proceedings and

rescind the in absentia removal order. Hee argued that he did not receive proper

notice of the hearing because the NOH was not sent to his Tucker, Georgia address

listed on the Form I-130. The IJ denied the motion, finding that the NOH was sent

to the address Hee provided to immigration officials when he was apprehended, as

indicated on the NTA. The IJ concluded that Hee had failed to notify the

Immigration Court of his address change and, thus, was not entitled to have his

removal order rescinded.

      Hee appealed to the BIA, arguing that he notified the Attorney General of

his address change via the Form I-130 and that notice of a new address need not be

on a Form EOIR-33 to be valid. The BIA dismissed Hee’s appeal. The BIA

concluded that Hee had “failed to notify the Court of his change of address by

filing a Form EOIR-33” and agreed with the IJ that notice of the hearing “was

adequate because the NOH was sent to the last address of record.” Hee filed this

petition for review.

                                II. DISCUSSION

      An alien who seeks to reopen removal proceedings following the entry of an

in absentia removal order must demonstrate either exceptional circumstances or

that the alien did not receive proper notice under 8 U.S.C. § 1229(a)(1) or (2). INA



                                         4
§ 240(b)(5)(C), 8 U.S.C. § 1229a(b)(5)(C).1 Hee does not contend that he has

shown exceptional circumstances, but argues that his notice of the hearing was not

proper under § 1229(a)(2).2

       Under § 1229(a)(1), an alien in removal proceedings must be provided with

written notice of the time or place of the alien’s hearing. INA § 239(a)(1)(G)(i), 8

U.S.C. § 1229(a)(1)(G)(i). Pursuant to § 1229(c), this notice is effective if sent by

mail “to the last address provided by the alien in accordance with subsection

(a)(1)(F).” Id. § 239(c), 8 U.S.C. § 1229(c).

       If such written notice is provided, but the alien nonetheless fails to attend the

hearing, that alien shall be removed in absentia if the government proves that

notice was sent and that the alien is removable. INA § 240(b)(5)(A), 8 U.S.C.

§ 1229a(b)(5)(A). Due process is satisfied “so long as the method of notice is

conducted in a manner reasonably calculated to ensure that notice reaches the


       1
         We review the denial of a motion to reopen for abuse of discretion. See Anin v. Reno,
188 F.3d 1273, 1276 (11th Cir. 1999). “In this particular area, the BIA’s discretion is quite
broad.” Id. (internal quotation marks omitted). Our review is limited to whether the exercise of
discretion was “arbitrary or capricious.” Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th
Cir. 2005). The BIA’s legal determinations are reviewed de novo. Castillo-Arias v. U.S. Att’y
Gen., 446 F.3d 1190, 1195 (11th Cir. 2006). Where, as here, the BIA did not expressly adopt the
IJ’s decision or reasoning, we review only the BIA’s decision. See Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001).
       2
         In the context of a motion to reopen an in absentia removal order, our jurisdiction to
review is limited to: (1) the validity of the notice provided to the alien; (2) the reasons why the
alien did not attend the proceeding; and (3) whether the alien is removable. INA § 240(b)(5)(D),
8 U.S.C. § 1229a(b)(5)(D). Thus, we have jurisdiction to review Hee’s claim that he failed to
appear because he did not receive valid notice of the hearing.
                                                    5
alien.” U.S. Att’y Gen. v. Dominguez, 284 F.3d 1258, 1259 (11th Cir. 2002)

(quotations marks omitted) (concluding that a handwritten note that an alien was

“staying with” her cousin at a particular address did not satisfy the requirement to

provide the Attorney General with written notice of a change of address). Thus,

when the alien has failed to appear, “written notice by the Attorney General shall

be considered sufficient . . . if provided at the most recent address provided under

section 1229(a)(1)(F).” INA § 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A); see

Dominguez, 284 F.3d at 1260-61.

      Section 1229(a)(1)(F)(ii) imposes upon the alien an affirmative duty to

“provide the Attorney General immediately with a written record” of his change of

address. INA § 239(a)(1)(F)(ii), 8 U.S.C. § 1229(a)(1)(F)(ii); Dominguez, 284

F.3d at 1260-61. The regulation implementing this statutory provision requires the

alien to provide “written notice of the change of address on Form EOIR-33 to the

Immigration Court where the charging document has been filed.” 8 C.F.R.

§ 1003.15(d)(2).

      On appeal, Hee argues he satisfied his duty to inform the Attorney General

of his change of address when his wife submitted the Form I-130 “Petition for

Alien Relative,” to DHS and, therefore, his NOH should have been sent to his

Tucker, Georgia address. We disagree.



                                          6
       Although the Form I-130 Hee’s wife submitted to DHS gave Hee’s Tucker,

Georgia address, the form did not give any indication at all that the Tucker,

Georgia address was a new address or that Hee’s address had changed since his

removal proceedings began and he provided the Nashville, Tennessee address.

Indeed, because the Form I-130 indicates that Hee has lived at the Tucker, Georgia

address since October 2007 and incorrectly states that Hee’s removal proceedings

began in May 2008 (when in fact they began in June 2006), from the face of the

form it appears Hee’s address has not changed since removal proceedings began.

For these reasons, even assuming arguendo a Form I-130 could be used to make

the required change-of-address notification, the contents of the particular Form I-

130 Hee’s wife submitted were insufficient to constitute a written record of an

address change within the meaning of § 1229(a)(1)(F)(ii).3

       Given that the Immigration Court mailed the NOH to Hee’s address in

Nashville, Tennessee, the last address Hee provided, the government’s notice was

sufficient under 8 U.S.C. § 1229a(b)(5)(A) and § 1229(c). Accordingly, there is no




       3
         Because we conclude that the contents of the particular Form I-130 Hee’s wife
submitted were insufficient to notify the Attorney General of Hee’s address change, we need not
address Hee’s argument that the BIA erred in requiring his change-of-address notification to be
on Form EOIR-33 and that 8 C.F.R. § 1003.15(d)’s requirement that aliens use Form EOIR-33
goes beyond § 1229(a)(1)(F)(ii) and is an unreasonable interpretation of that statute. We
likewise do not address the government’s argument that submitting the Form I-130 was
insufficient to notify the Attorney General because it was sent to DHS, which is not a component
of the Department of Justice or a delegate of the Attorney General.
                                                 7
basis to conclude that the BIA abused its discretion in denying Hee’s motion to

reopen.

      PETITION DENIED.




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