Bykota Agharese Omobude v. US Attorney General

Eleventh Circuit

Bykota Agharese Omobude v. US Attorney General

522 F. App'x 785

CourtCourt of Appeals for the Eleventh Circuit

DecidedJuly 1, 2013

Docket12-15969

StatusUnpublished

This text of 522 F. App'x 785 (Bykota Agharese Omobude v. US Attorney General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bykota Agharese Omobude v. US Attorney General, 522 F. App'x 785 (11th Cir. 2013).

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Opinion

PER CURIAM:

Bykota Agharese Omobude petitions for review of the final order of the Board of Immigration Appeals dismissing her appeal of the Immigration Judge’s denial of her motion to reopen her in absentia order of removal.

“We review the BIA’s denial of a motion to reopen for abuse of discretion.” Ali v. United States Att’y Gen., 443 F.3d 804, 808 (11th Cir.2006). Our review of an order entered in absentia is “confined to (i) the validity of the notice provided to the alien, (ii) the reasons for the alien’s not attending the proceeding, and (iii) whether or not the alien is removable.” 8 U.S.C. § 1229a(b)(5)(D).

Any alien who does not attend a proceeding is subject to removal in absentia if the government establishes by “clear, unequivocal, and convincing evidence” that it gave the alien written notice of the time and place of the hearing. 8 U.S.C. § 1229a(b)(5)(A); 8 U.S.C. § 1229(a)(1)(G)(i). “[A] mailing to the last known address [of the alien] is sufficient to satisfy the INS’s duty to provide an alien with notice of a deportation proceeding.” United States v. Zelaya, 293 F.3d 1294, 1298 (11th Cir.2002); see also 8 U.S.C. § 1229a(b)(5)(A). An in absentia removal order may be rescinded “upon a motion to reopen ... if the alien demonstrates that [she] did not receive notice.” 8 U.S.C. § 1229a(b)(5)(C)(ii).

Omobude’s sole argument on appeal is that she did not receive — and could not have received — notice of the hearing because no such notice ever existed. She bases this argument on her contention that the government failed to provide the immigration court with the notice it allegedly sent to her. That contention is incorrect. The administrative record contains a notice dated September 23, 1999 that gives the date and location of the hearing and is marked as mailed to the address provided by Omobude.

PETITION DENIED.

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PER CURIAM:

Bykota Agharese Omobude petitions for review of the final order of the Board of Immigration Appeals dismissing her appeal of the Immigration Judge’s denial of her motion to reopen her in absentia order of removal.

“We review the BIA’s denial of a motion to reopen for abuse of discretion.” Ali v. United States Att’y Gen., 443 F.3d 804, 808 (11th Cir.2006). Our review of an order entered in absentia is “confined to (i) the validity of the notice provided to the alien, (ii) the reasons for the alien’s not attending the proceeding, and (iii) whether or not the alien is removable.” 8 U.S.C. § 1229a(b)(5)(D).

Any alien who does not attend a proceeding is subject to removal in absentia if the government establishes by “clear, unequivocal, and convincing evidence” that it gave the alien written notice of the time and place of the hearing. 8 U.S.C. § 1229a(b)(5)(A); 8 U.S.C. § 1229(a)(1)(G)(i). “[A] mailing to the last known address [of the alien] is sufficient to satisfy the INS’s duty to provide an alien with notice of a deportation proceeding.” United States v. Zelaya, 293 F.3d 1294, 1298 (11th Cir.2002); see also 8 U.S.C. § 1229a(b)(5)(A). An in absentia removal order may be rescinded “upon a motion to reopen ... if the alien demonstrates that [she] did not receive notice.” 8 U.S.C. § 1229a(b)(5)(C)(ii).

Omobude’s sole argument on appeal is that she did not receive — and could not have received — notice of the hearing because no such notice ever existed. She bases this argument on her contention that the government failed to provide the immigration court with the notice it allegedly sent to her. That contention is incorrect. The administrative record contains a notice dated September 23, 1999 that gives the date and location of the hearing and is marked as mailed to the address provided by Omobude.

PETITION DENIED.

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