Diaz-Pajardo v. Garland

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 27, 2024
• Docket: 23-60437
• Status: Unpublished

Opinion

Case: 23-60437 Document: 74-1 Page: 1 Date Filed: 03/27/2024

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 23-60437 Summary Calendar FILED March 27, 2024 ____________ Lyle W. Cayce Elsa Diaz-Pajardo, Clerk

Petitioner,

versus

Merrick Garland, U.S. Attorney General,

Respondent. ______________________________

Petition for Review of an Order of the Board of Immigration Appeals Agency No. A098 488 759 ______________________________

Before Barksdale, Graves, and Oldham, Circuit Judges. Per Curiam: * Proceeding pro se, Elsa Diaz-Pajardo, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (BIA) order affirming the denial of her motion to reopen and to rescind her in absentia order of removal. See, e.g., Jaco v. Garland, 24 F.4th 395, 400 (5th

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 23-60437 Document: 74-1 Page: 2 Date Filed: 03/27/2024

No. 23-60437

Cir. 2021) (“We construe the filings of pro se litigants liberally.”). (The motion to reopen was filed more than 15 years after the 2004 removal order.) Diaz contends she was not notified properly of her removal hearing. Our court reviews denial of a motion to reopen under a “highly deferential abuse-of-discretion standard”. Mauricio-Benitez v. Sessions, 908 F.3d 144, 147 (5th Cir. 2018) (citation omitted). An in absentia removal order may be rescinded if an alien shows: she did not receive notice of the hearing in accordance with 8 U.S.C. § 1229(a); and the failure to appear was through no fault her own. 8 U.S.C. § 1229a(b)(5)(C)(ii). Section 1229(a) provides that an alien subject to removal proceedings is entitled to written notice specifying, inter alia, the time and place of the removal proceedings and the consequences for failing to appear. 8 U.S.C. § 1229(a)(1)(G). An alien, however, is not entitled to written notice of her removal hearing if she fails to provide an address where she can be notified after being informed of her obligation to do so. E.g., Nivelo Cardenas v. Garland, 70 F.4th 232, 243 (5th Cir. 2023). It is undisputed that Diaz never provided an address where she could be notified, despite being advised of her obligation to do so. She, therefore, forfeited her right to notice. See id. DENIED.