Thongphilack v. Gonzales

506 F.3d 1207, 2007 WL 3332070
Court of Appeals for the Tenth Circuit·Decided November 6, 2007·No. 06-9575·Published·Cited by 10 cases

Opinion

MURPHY, Circuit Judge.

Petitioner Nikhomsy Thongphilack seeks review of a Board of Immigration Appeals (BIA) order denying his motion to reopen removal proceedings. Mr. Thongphilack did not appear for his removal hearing, so an immigration judge (IJ) conducted the hearing in absentia and ordered him removed to Laos. We deny review.

Background

We provide only those facts pertinent to the issues under review. After removal proceedings were initiated against Mr. Thongphilack, the IJ held an advisement hearing on March 3, 2005. During the hearing, the IJ noticed that Mr. Thongphi-lack had a change-of-address form. The IJ told him to complete the form and submit it to the immigration court, noting that the law required him to inform the court of his new address within five days of any address change. 1 The IJ then orally informed Mr. Thongphilack that his removal hearing was scheduled for July 14, 2005. The agency sent a written notice of *1209 the hearing to Mr. Thongphilack at his address on file in West Valley City, Utah. The IJ held Mr. Thongphilack’s removal hearing on July 14, 2005. He did not appear, so the IJ entered an in absentia removal order.

Almost five months later, Mr. Thongphilack, through counsel, filed a motion to reopen supported by his affidavit claiming that he did not receive the notice of the July 2005 hearing at his new address in Ogden, Utah. He asserted that he prepared a change-of-address form in April 2005 and gave it to a friend to mail for him. He also alleged that he orally informed the IJ at the March 2005 advisement hearing of his new address. Respondent concedes that the notice was not sent to the Ogden address. The IJ determined that the hearing notice was sent to Mr. Thongphilack’s address of record, that he had failed to file the necessary change-of-address form or otherwise provide his new address in a timely manner, and that he had actual notice of the hearing date. Accordingly, the IJ denied the motion to reopen. The BIA affirmed without opinion.

Discussion

When the BIA summarily affirms the decision of the IJ, we review the IJ’s decision as the final agency action. 8 C.F.R. § 1003.1(e)(4); Uanreroro v. Gonzales, 443 F.3d 1197, 1203 (10th Cir.2006). Although Mr. Thongphilack devotes most of his brief to his argument that respondent failed to show that he was removable, his failure to file a timely appeal of the removal order precludes our review of that order. See Infanzon v. Ashcroft, 386 F.3d 1359, 1361 (10th Cir.2004) (holding appellate court was without jurisdiction over removal order because alien did not file petition for review within thirty days). We do have jurisdiction to review the motion to reopen because “[i]t is considered a final, separately appealable order.” Id.

If an alien fails to appear for his removal hearing, the IJ may enter an order of removal in absentia. 8 U.S.C. § 1229a(b)(5)(A). An in absentia order may be rescinded upon a motion to reopen if the alien demonstrates that he did not receive notice in accordance with 8 U.S.C. § 1229(a)(1) or (2). 8 U.S.C. § 1229a(b)(5)(C)(ii). 2

“We review the [IJJ’s decision on a motion to reopen for an abuse of discretion. The [IJ] abuses [his] discretion when [his] decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.” Tang v. Ashcroft, 354 F.3d 1192, 1194 (10th Cir.2003) (quotation omitted). “Motions for reopening of immigration proceedings are disfavored” because “every delay works to the advantage of the [removable] alien who wishes merely to remain in the United States.” INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992).

The alien bears the “burden of demonstrating the claimed lack of notice.” Gurung v. Ashcroft, 371 F.3d 718, 722 (10th Cir.2004). Evidence that the notice of hearing was mailed to the alien raises a presumption of receipt. See id. Congress has determined that “[t]he written notice [of the removal hearing] by the Attorney General shall be considered sufficient ... if provided at the most recent address *1210 provided under [8 U.S.C. § ] 1229(a)(1)(F).” 8 U.S.C. § 1229a(b)(5)(A). Consequently, the alien’s “burden is not a light one.” Gurung, 371 F.3d at 722. The alien must support his motion to reopen with affidavits or other evidentiary materials in order to overcome the presumption of receipt. 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R. § 208.2(c)(3)(ii)(A).

The administrative record reflects that the notice of hearing was mailed to Mr. Thongphilack’s former address in West Valley City. Mr. Thongphilack claims that respondent’s failure to send the notice to his Ogden address provides grounds to reopen his removal proceedings.

Mr. Thongphilack relies on his own affidavit asserting that he gave his change-of-address form to an unidentified friend to mail for him. He has not provided an affidavit from the friend, nor does he claim the friend told him that the mailing had been accomplished. We conclude that Mr. Thongphilack’s vague, self-serving claim that he entrusted a change-of-address form to a friend for mailing is not “substantial and probative evidence demonstrating that ... nondelivery was not due to the alien’s failure to provide an address where he could receive mail.” Gurung, 371 F.3d at 722 (quotation omitted).

Mr. Thongphilack also contends that by orally informing the IJ of his new address at the March 2005 advisement hearing, he provided adequate notice of his change of address. Written notice is required. See 8 U.S.C. § 1229(a)(1)(F)(i) (referring to “requirement that 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 C.F.R. § 1003

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Thongphilack v. Gonzales, 506 F.3d 1207, 2007 WL 3332070 (10th Cir. 2007).

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