Guevara-Villacorta v. Sessions


FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT September 5, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court MILTON A. GUEVARA-VILLACORTA, Petitioner, v. No. 18-9508 (Petition for Review) JEFFERSON B. SESSIONS, III, Attorney General, Respondent. _________________________________ ORDER AND JUDGMENT* _________________________________ Before BRISCOE, HOLMES, and MATHESON, Circuit Judges. _________________________________ Milton Guevara-Villacorta, a native and citizen of El Salvador, petitions this court for review of an order of the Board of Immigration Appeals (BIA) affirming the immigration judge’s decision to deny his motion to reopen his removal proceedings. Exercising jurisdiction pursuant to 8 U.S.C. § 1252(a)(1), we deny the petition for review. * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. I Guevara-Villacorta entered the United States without inspection on or about November 11, 2000. In September of 2003, Guevara-Villacorta filed with the Immigration and Naturalization Service (INS) two separate forms: a Form I-821, Application for Temporary Protected Status, and a Form I-765, Application for Employment Authorization. On September 17, 2003, INS mailed notice of receipt of the Form I-765 to Guevara-Villacorta at P.O. Box 414, Aurora, Colorado. On January 23, 2004, the United States Citizenship and Immigration Services mailed to Guevara-Villacorta at the same address a notice that his Form I-765 had been denied. On or about November 3, 2004, the Department of Homeland Security (DHS) issued a Notice to Appear to Guevara-Villacorta and mailed it to the same Aurora address. The Notice to Appear indicates it was served on Guevara-Villacorta on or about November 9, 2004. DHS sent a notice of removal hearing to the same address, but that was returned as undeliverable.1 On December 30, 2004, an immigration judge (IJ) ordered Guevara-Villacorta to be removed in absentia for failing to appear at the removal hearing. On September 13, 2007, DHS apprehended Guevara- Villacorta. Guevara-Villacorta was physically removed from the United States to El Salvador on October 22, 2007. Guevara-Villacorta subsequently reentered the United States illegally on three occasions—twice in 2009 and once in 2012—and each time was removed. 1 In an affidavit submitted with his motion to reopen, Guevara-Villacorta alleged that at some point he discontinued payment on and use of P.O. Box 414. 2 On October 13, 2015, Guevara-Villacorta filed a motion to reopen and rescind the in absentia removal order that was entered by the IJ on December 30, 2004. He claimed in his motion that he did not receive proper notice of the removal hearing. The IJ initially granted the motion to reopen. But DHS filed a motion ...

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