Petition for Review of Order of the Board of Immigration
JOLLY, ELROD, and WILLETT, Circuit Judges.
JENNIFER WALKER ELROD, CIRCUIT JUDGE.
panel opinion previously issued in this case is withdrawn,
and the following opinion is substituted in its place.
Teresa Luna-Garcia, a citizen of Guatemala, petitions for
review of an order of the Board of Immigration Appeals (BIA)
dismissing her appeal of the denial of her motion to reopen.
For the following reasons, we deny her petition for review.
2004, Luna-Garcia entered the United States without
inspection and was detained shortly thereafter. The Border
Patrol issued a Notice to Appear (NTA) and initiated removal
proceedings against Luna-Garcia. The NTA noted that
Luna-Garcia "FAILED TO PROVIDE A U.S. ADDRESS."
Other Border Patrol records (Form I-213) listed a San Antonio
address "c/o [Immigration and Naturalization Service
(INS)]" as a United States address and a Guatemalan
village "Aldea El Zarzal, Mun. de San Reymundo" as
Luna-Garcia's "permanent residence." The NTA
informed Luna-Garcia that she was "required to provide
the [INS], in writing, with [her] full mailing address and
telephone number" and to "notify the Immigration
Court immediately by using Form EOIR-33 whenever [she]
change[s] [her] address or telephone number." The NTA
explained that she "will be provided with a copy of
[Form EOIR-33]" and that "[n]otices of hearing will
be mailed to this address." Finally, the NTA warned
Luna-Garcia that "[i]f [she] do[es] not submit Form
EOIR-33 and do[es] not otherwise provide an address at which
[she] may be reached during proceedings, then the Government
shall not be required to provide [her] with written
notice" and that the immigration judge (IJ) may order
her removed in absentia. Luna-Garcia signed a
certificate of service, acknowledging personal service of the
NTA. Upon release, Luna-Garcia never followed up with the
immigration court to provide an address.
10, 2004, an IJ held a hearing, but Luna-Garcia failed to
appear. The IJ found that "[a] notice of the hearing was
. . . not given to [Luna-Garcia] because [she] failed to
provide the court with [her] address as required under [8
U.S.C. § 1229(a)(1)(F)] after having been advised of
that requirement in the [NTA]." The IJ consequently
ordered Luna-Garcia removed in absentia.
November 2015, Luna-Garcia filed a motion to reopen and
rescind her 2004 in absentia removal order on the
grounds that she did not receive notice of her removal
proceedings. The IJ denied her motion to reopen because
Luna-Garcia, despite knowing that her NTA did not include any
address, had made no effort for over a decade to provide an
address. The IJ also observed that providing a Guatemalan
address was inadequate because Luna-Garcia had no plans to
return to Guatemala but instead was traveling to New York to
seek employment. The BIA affirmed the denial of her motion to
reopen after observing that Luna-Garcia "cite[d] to no
authority to support her argument that a foreign address is
sufficient, especially when the NTA calls for a U.S. form of
address." Luna-Garcia filed a petition for review before
"[W]e review BIA denials of [motions to reopen] under a
'highly deferential abuse-of-discretion
standard.'" Mauricio-Benitez v. Sessions,
908 F.3d 144, 147 (5th Cir. 2018) (quoting
Hernandez-Castillo v. Sessions, 875 F.3d 199, 203
(5th Cir. 2017)). We may overturn a BIA decision only if it
is "capricious, without foundation in the evidence, or
otherwise so irrational that it is arbitrary rather than the
result of any perceptible rational approach."
Id. (quoting Hernandez-Castillo, 875 F.3d
at 203). "We review the BIA's rulings of law de
novo . . . ." Lopez Ventura v. Sessions, 907
F.3d 306, 310 (5th Cir. 2018).
argues that she is entitled to reopen the in
absentia removal order because she never received notice
despite having satisfied her statutory obligation to provide
an address to receive notice. We disagree.
8 U.S.C. § 1229a(b)(5)(A), an alien who fails to attend
a hearing after written notice has been provided to the alien
or the alien's counsel of record shall be ordered removed
in absentia if the government establishes by
'clear, unequivocal, and convincing evidence' that
the written notice was so provided and that the alien is
removable." Hernandez-Castillo, 875 F.3d at 204
(quoting 8 U.S.C. § 1229a(b)(5)(A)). However, "[a]n
in absentia removal order entered without proper
notice to the alien may be rescinded at any time upon a
motion to reopen . . . ." Mauricio-Benitez, 908
F.3d at 147; see also 8 U.S.C. §
1229a(b)(5)(B), (C). In turn, an alien has an obligation to
provide "an address . . . at which the alien may be
contacted respecting proceedings under [8 U.S.C. §
1229a]." 8 U.S.C. § 1229(a)(1)(F)(i). "[I]f
the alien fails to provide a mailing address in accordance
with the statutory requirements, he is not entitled to
written notice of his removal hearing."
Mauricio-Benitez, 908 F.3d at 147; accord 8
U.S.C. § 1229a(b)(5)(B). Thus, "an in absentia
removal order should not be revoked on the grounds that an
alien failed to actually receive the ...