Gabriela Ansurez-Chavez v. Merrick B. Garland

Opinion

United States Court of Appeals For the Eighth Circuit

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No. 23-2540

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Gabriela Ansurez-Chavez

Petitioner

v.

Merrick B. Garland, Attorney General of the United States

Respondent

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Petition for Review of an Order of the Board of Immigration Appeals

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Submitted: February 7, 2024 Filed: February 12, 2024 [Unpublished]

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Before SHEPHERD, STRAS, and KOBES, Circuit Judges.

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PER CURIAM.

Gabriela Ansurez-Chavez missed her immigration hearing and was ordered removed in absentia in 2003. Although she challenges the decision not to reopen the case 18 years later, we deny the petition for review.

Despite her arguments to the contrary, the Board did not abuse its discretion in concluding that she received notice of her hearing back in 2003. See 8 U.S.C. § 1229a(b)(5)(C)(ii); Diaz v. Lynch, 824 F.3d 758, 760 (8th Cir. 2016) (per curiam) (reviewing the denial of a motion to reopen under an abuse-of-discretion standard). The agency sent a notice to appear by certified mail and follow-up notices by regular mail to the address she provided. See 8 U.S.C. § 1229(a)(1) (authorizing service by mail). An “unsupported denial of receipt” does not rebut the presumption that they were delivered. Patel v. Holder, 652 F.3d 962, 969 (8th Cir. 2011) (citation omitted) (addressing certified mail); see also Diaz, 824 F.3d at 760 (addressing regular mail); 8 U.S.C. § 1229a(b)(5)(B) (stating that an alien who fails to provide a current address is not entitled to written notice).

As for the other issues she raises, they are harmless, see Aguilar v. Garland, 60 F.4th 401, 407 (8th Cir. 2023); waived, see Chay-Velasquez v. Ashcroft, 367 F.3d 751, 756 (8th Cir. 2004); unexhausted, see Essel v. Garland, 89 F.4th 686, 691 (8th Cir. 2023); or unreviewable, see Vue v. Barr, 953 F.3d 1054, 1057–58 (8th Cir. 2020). We accordingly deny the petition for review. See 8th Cir. R. 47B.

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