Sergio Armando Aragón-Muñóz v. Michael B. Mukasey, Attorney General

Pursuant to Fed. R. App. P. 43(c)(2), Attorney General *
Michael B. Mukasey has been substituted for former Attorney General
Alberto R. Gonzáles as the respondent herein.
United States Court of Appeals
For the First Circuit
No. 06-2776
SERGIO ARMANDO ARAGÓN-MUÑÓZ,
Petitioner,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL,*
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Torruella, Lynch,
and Lipez, Circuit Judges.
Christopher J. Stender and Stender and Pope, PC on brief for
petitioner.
Shahrzad Baghai, Trial Attorney, Peter D. Keisler, Assistant
Attorney General, and Anthony W. Norwood, Senior Litigation
Counsel, on brief for respondent.
March 21, 2008

-- 1 of 10 --

-2-
LIPEZ, Circuit Judge. Sergio Armando Aragón-Muñóz, a
citizen of Guatemala, seeks review of the order of the Board of
Immigration Appeals ("BIA" or "Board") denying his motion to reopen
his removal proceedings. On May 25, 2000, after Aragón-Muñóz
failed to appear at a hearing on his removability and asylum claim,
the Immigration Judge ("IJ") ordered him removed in absentia. More
than four years later, Aragón-Muñóz filed a motion to reopen on the
ground that he had not received the Notice to Appear ("NTA")
because he had moved to Arizona. He further argued that even if he
had received the NTA, the notice was insufficient because he was
entitled to an oral warning in Spanish, his native language, of the
consequences of failing to appear.
The IJ denied his motion to reopen without issuing an
opinion. Aragón-Muñóz appealed to the BIA, which remanded the case
for a full explanation of the reasons for the denial. In response,
the IJ entered a decision explaining that Aragón-Muñóz had failed
to adduce any evidence that he had changed his address. The BIA
affirmed, elaborating on the lack of evidence in the record. We
deny Aragón-Muñóz's petition for review.
I.
Aragón-Muñóz entered the United States on or about August
20, 1994. On September 14, 1994, he filed an application for
asylum, which listed his address as "309 West 12th Street,
Lexington, Nebraska 68850." On August 24, 1999, he attended his

-- 2 of 10 --

-3-
asylum interview in Boston, Massachusetts. The record contains two
copies of Aragón-Muñóz's asylum application. One shows the
Nebraska address. The second contains hand-written edits, labeled
as correction "(1)," changing the address to "40 Huldah St.,
Providence, Rhode Island 02909." This copy of the application
includes Aragón-Muñóz's signature, dated August 24, 1999,
acknowledging, inter alia, that correction "(1)" had been made by
him or at his request.
On March 20, 2000, the Immigration and Naturalization
Service sent an NTA to Aragón-Muñóz via regular mail to the Rhode
Island address indicated on the edited asylum application. The NTA
ordered Aragón-Muñóz to appear before an IJ in Boston on May 25,
2000. He failed to appear at the scheduled hearing. The
government proceeded in absentia, resting on the application for
asylum containing the Rhode Island address and the NTA, which was
mailed to that address. The IJ ordered that Aragón-Muñóz be
removed to Guatemala. A copy of the removal order was sent via
regular mail to the Rhode Island address on the asylum application.
On April 20, 2004, Aragón-Muñóz filed a motion to reopen
removal proceedings. He alleged that he did not receive the NTA;
that he had given an Arizona address to the asylum officer at his
August 1999 interview; and that he was assured that his new address
would be noted in the file, although "[t]his apparently did not
happen." He also argued that, because he had never appeared in

-- 3 of 10 --

-4-
immigration court, "he was never advised in Spanish of the
consequences of failure to appear."
The IJ denied Aragón-Muñóz's motion without a written
opinion. She indicated in a hand-written notation on the motion
paper that the motion had been denied because Aragón-Muñóz had
failed to state any facts "which could possibly warrant reopening."
Following Aragón-Muñóz's appeal to the BIA, the Board remanded the
case to the IJ "for inclusion of an appropriate decision," finding
the hand-written notation insufficient.
The IJ then issued a decision explaining that Aragón-
Muñóz had failed to present evidence that he did not receive proper
notice of the hearing. Specifically, she stated that the NTA had
been sent to Aragón-Muñóz's last known address, as indicated on the
corrected asylum application. She noted that Aragón-Muñóz had
failed to provide any evidence of an address change and that the
record contained no change of address form.
Aragón-Muñóz once again appealed to the BIA, arguing that
the hand-written edits to his asylum application had been made in
1994, not at the August 1999 interview. He also asserted that he
sought relief through adjustment of status because he had married
a lawful permanent resident of the United States and had an
approved I-130, Petition for Alien Relative. However, he provided
no documentary evidence of the I-130 or the marriage itself.

-- 4 of 10 --

-5-
The Board affirmed. In its decision, the Board rejected
Aragón-Muñóz's claim that the hand-written edits had been made in
1994. It stated that these corrections appear to have been made
during the August 1999 asylum interview. It supported this
conclusion by noting that a photocopy of an employment
authorization card, issued by the state of Rhode Island in February
1999 with an expiration date of February 2000, accompanied the
edited asylum application. The Board also noted that the affidavit
included with Aragón-Muñóz's motion to reopen "fails to identify
the exact address he purportedly lived at in Arizona, nor does it
indicate when he allegedly moved." Moreover, the Board noted that
Aragón-Muñóz had not provided any evidence that he ever resided at
any Arizona address. This petition for review followed.
II.
We review the denial of Aragón-Muñóz's motion to reopen
for abuse of discretion. Grigous v. Gonzales, 460 F.3d 156, 159
(1st Cir. 2006). We will find an abuse of discretion "'where the
BIA misinterprets the law, or acts either arbitrarily or
capriciously.'" Id. (quoting Maindrond v. Ashcroft, 385 F.3d 98,
100 (1st Cir. 2004)). We defer to the factual determinations made
by the BIA if they are based on "reasonable, substantial, and
probative evidence." Ymeri v. Ashcroft, 387 F.3d 12, 17 (1st Cir.
2004). Where, as here, the Board issues its own opinion and does

-- 5 of 10 --

The full text of this section provides: 1
Any alien who, after written notice
required under paragraph (1) or (2) of section
1229(a) of this title has been provided to the
alien or the alien's counsel of record, does
not attend a proceeding under this section,
shall be ordered removed in absentia if the
Service establishes by clear, unequivocal, and
convincing evidence that the written notice
was so provided and that the alien is
removable (as defined in subsection (e)(2) of
this section). The written notice by the
Attorney General shall be considered
sufficient for purposes of this subparagraph
if provided at the most recent address
provided under section 1229(a)(1)(F) of this
title.
8 U.S.C. § 1229a(b)(5)(A).
-6-
not adopt the IJ's decision, we review the decision of the Board.
Romilus v. Ashcroft, 385 F.3d 1, 5 (1st Cir. 2004).
An alien's failure to appear at a scheduled immigration
hearing results in mandatory entry of an in absentia removal order
if the government establishes that written notice of the hearing
was given and that the alien is removable as charged. 8 U.S.C.
§ 1229a(b)(5)(A). A notice to appear, as described in 8 U.S.C. 1
§ 1229(a), sent to the most recent address provided by the alien is
deemed sufficient written notice to satisfy the statute. 8 U.S.C.
§ 1229a(b)(5)(A); see also 8 U.S.C. § 1229(c)("Service by mail
under this section shall be sufficient if there is proof of
attempted delivery to the last address provided by the
alien . . . ."). If the alien has failed to provide the government

-- 6 of 10 --

-7-
with his most recent address, no notice is required before the in
absentia order may be issued. 8 U.S.C. § 1229a(b)(5)(B).
There are several ways for an alien who has been ordered
removed in absentia to reopen his proceedings. First, the statute
provides that an alien who has received notice may seek rescission
of the in absentia order by filing a motion to reopen within 180
days and showing that his "failure to appear was because of
exceptional circumstances." 8 U.S.C. § 1229a(b)(5)(C)(i). Aragón-
Muñóz makes no claim of exceptional circumstances nor was his
application filed within 180 days.
Second, the statute provides that an in absentia order
may be rescinded at any time if the alien demonstrates that he did
not receive notice of the hearing. 8 U.S.C. § 1229a(b)(5)(C)(ii).
The alien bears the burden of demonstrating that notice was never
received. Sousa v. Ashcroft, 393 F.3d 271, 275 (1st Cir. 2005).
The Board found that Aragón-Muñóz failed to meet his
burden of demonstrating that he did not receive the NTA. The
record does not compel us to conclude otherwise. The BIA
reasonably concluded that the hand-written edits to the asylum
application had been made at the August 1999 interview and that the
attached copy of Aragón-Muñóz's 1999-2000 Rhode Island employment
authorization card supported this view. We add that Aragón-Muñóz's
1999 signature acknowledging the correction also strongly supports
the conclusion that the change was made in 1999 and not 1994. As

-- 7 of 10 --

An alien may also be able to avoid the consequences of an in 2
absentia removal order by meeting the general requirements for a
motion to reopen removal proceedings. See 8 C.F.R.
§ 1003.23(b)(1)-(2). Aragón-Muñóz does not provide any developed
argument that he has met these general requirements, and as we
discuss infra in Part III, he has not, in fact, satisfied the
general requirements for a motion to reopen.
-8-
the BIA noted, Aragón-Muñóz introduced no affirmative evidence of
where he was living in March 2000 when the NTA was sent to the
Rhode Island address. Hence, there is no affirmative evidence,
other than Aragón-Muñóz's vague assertion that he lived somewhere
in Arizona at the time, to support the contention that he did not
receive the NTA. Accordingly, the BIA did not abuse its discretion
in denying the motion to reopen.2
III.
Aragón-Muñóz also contends that he is entitled to
reopening of his removal proceedings because he was not provided
with an oral warning in Spanish of the consequences of failing to
appear at the hearing. He relies on 8 U.S.C. § 1229a(b)(7), which
provides:
Any alien against whom a final order of
removal is entered in absentia under this
subsection and who, at the time of the notice
. . . was provided oral notice, either in the
alien's native language or in another language
the alien understands, of the time and place
of the proceedings and of the consequences
under this paragraph of failing, other than
because of exceptional circumstances . . . to
attend a proceeding under this section, shall
not be eligible for relief under [8 U.S.C.
§§ 1229b, 1229c, 1255, 1258, or 1259] for a

-- 8 of 10 --

-9-
period of 10 years after the date of the entry
of the final order of removal.
However, Aragón-Muñóz misunderstands this provision. It operates
as a ten-year bar to future eligibility for certain forms of
discretionary relief when oral notice in the alien's native
language is given prior to entry of the in absentia removal order.
Grigous, 460 F.3d at 161. Although the statutory bar applies if
oral notice was given, the statute does not purport to require such
notice. As we made clear in Grigous, the government's failure to
provide oral warnings in an alien's native language does not mean
that he is "automatically entitled to reopening." Id. at 162
(emphasis in original). On the contrary, the failure to give oral
warnings means only that relief is not precluded by the statute and
"that he must still meet the requirements for motions to reopen
under the general regulations." Id. Those regulations require
that a motion to reopen "shall state the new facts that will be
proven at a hearing to be held if the motion is granted" and be
supported by "the appropriate application for relief and all
supporting documents." 8 C.F.R. § 1003.23(b)(3).
Aragón-Muñóz did not introduce any new facts in support
of his asylum application and did not include any documentary
evidence in support of his contention that he is now entitled to an
adjustment of status based on his marriage to a legal permanent
resident. Accordingly, the absence of oral notice is not relevant
because Aragón-Muñóz did not meet his burden under the general

-- 9 of 10 --

-10-
regulations governing motions to reopen. We deny his petition for
review.
Petition denied.

-- 10 of 10 --