Richart Centeno-Sotelo v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 7, 2021
• Docket: 16-73958
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 7 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RICHART CENTENO-SOTELO, No. 16-73958

Petitioner, BIA A200-806-639

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

Appeal from the Board of Immigration Appeals

Submitted November 19, 2021** San Francisco, California

Before: McKEOWN and GOULD, Circuit Judges, and MOLLOY,*** District Judge.

Richart Centeno-Sotelo, a non-citizen, failed to appear at his removal

hearing and was ordered removed in absentia. He now petitions for review of the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation. 1 Board of Immigration Appeals’ (“BIA”) order dismissing his appeal of an

Immigration Judge’s (“IJ”) denial of his motion to reopen the in absentia order of

removal on two grounds: (1) he did not receive constitutionally sufficient notice,

and (2) the Immigration Service failed to provide statutorily required notice. We

have jurisdiction under 8 U.S.C. § 1252 and deny the petition for review.

I.

In removal proceedings, due process “requires that notice be sufficient to

advise aliens of the pendency of the [removal] action and afford them an

opportunity to present their objections.” Khan v. Ashcroft, 374 F.3d 825, 828 (9th

Cir. 2004) (internal quotation marks omitted). It does not require actual notice;

“[r]ather, due process is satisfied if service is conducted in a manner ‘reasonably

calculated’ to ensure that notice reaches the alien.” Farhoud v. I.N.S., 122 F.3d

794, 796 (9th Cir. 1997). The Notice to Appear (“NTA”) Centeno-Sotelo received

on the day he was released from custody meets this standard. That NTA was

personally served on him, listed his address as on Bonanza Street, and Centeno-

Sotelo signed it.

II.

The notice provided here is also sufficient because Centeno-Sotelo did not

satisfy the obligation to provide a compliant address as required by the statute,

which obviated the Immigration Service’s duty to provide written notice under 8

2 U.S.C. § 1229a(b)(5)(A). “The immigration statutes governing notice do three

things: (1) [t]hey create a right to notice; (2) [t]hey create an exception to that right

for aliens who do not fulfill two simple obligations; and (3) [t]hey describe those

obligations.” Velasquez-Escovar v. Holder, 768 F.3d 1000, 1003 (9th Cir. 2014).

Pursuant to 8 U.S.C. § 1229a(b)(5)(B), “[n]o written notice shall be required under

subparagraph (A) if the alien has failed to provide the address required under

section 1229(a)(1)(F) of this title.” See Al Mutarreb v. Holder, 561 F.3d 1023,

1026–27 (9th Cir. 2009) (explaining that the Immigration Service has no obligation

to provide notice until a compliant address has been provided). Accordingly, “the

alien must immediately provide (or have provided) the Attorney General with a

written record of an address and telephone number (if any) at which the alien may

be contacted.” 8 U.S.C. § 1229(a)(1)(F)(i). But a petitioner can “provide” his

address in accordance with the statute “only if he has actually received, or can be

fairly charged with receiving, the specific advisals and warnings enumerated at

§ 1229(a)(1)(F) regarding the consequences of his failure to provide and update his

address once removal proceedings have begun.” Al Mutarreb, 561 F.3d at 1027

(footnote omitted). “That advisal is usually conveyed to an alien for the first time

in an NTA.” Id.

Here, as discussed above, substantial evidence supports the conclusion that

Centeno-Sotelo actually received the NTA, which includes cautionary language

3 that all future immigration-related documents would be sent to the address on the

NTA, and Centeno-Sotelo could be ordered removed if he failed to appear.

Therefore, the NTA triggered Centeno-Sotelo’s obligation under § 1229(a)(1)(F) to

provide his address. Additionally, though Centeno-Sotelo claims that the

Immigration Service failed to properly record his address, the BIA sufficiently

addressed that argument by noting that he could not recall the exact address on

Bonanza Road where he had resided, so any argument that the address was

incorrect is speculative. Moreover, the BIA explained that, although Centeno-

Sotelo claimed he did not provide the Bonanza Street address to the Department,

he did admit to living at a property on “Bonanza Road” during 2009, which is

inconsistent with his statement that he lived elsewhere during that period. Thus,

because substantial evidence supports the BIA’s determination that Centeno-Sotelo

failed to provide his address as required, the Immigration Service was relieved of

its notice obligation, and the in absentia order of removal was properly entered

against him.

PETITION DENIED.