Dharmegh Hashmukhbmai-Patel v. Jefferson Sessions

Case: 16-60589 Document: 00514185913 Page: 1 Date Filed: 10/06/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 16-60589 FILED Summary Calendar October 6, 2017 Lyle W. Cayce Clerk DHARMEGH HASHMUKHBMAI-PATEL, Petitioner v. JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL, Respondent Petition for Review of an Order of the Board of Immigration Appeals BIA No. A074 589 160 Before BENAVIDES, CLEMENT, and GRAVES, Circuit Judges. PER CURIAM: * Dharmegh Hashmukhbmai-Patel, a native and citizen of India, petitions for review of an order by the Board of Immigration Appeals (BIA) dismissing his appeal of the immigration judge’s (IJ) denial of his motion to reopen his deportation proceedings to rescind an in absentia deportation order. Arguing that the BIA abused its discretion in dismissing his appeal, he contends that he was not given notice of his deportation hearing because he had moved from * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 16-60589 Document: 00514185913 Page: 2 Date Filed: 10/06/2017 No. 16-60589 the Grand Prairie, Texas address to which the written notice was mailed and thus did not receive it. Because he was not advised in his native language of Gujarati of the Order to Show Cause’s (OSC) contents or his obligation to notify the immigration court within five days regarding a change of address, he contends that notice mailed to the Grand Prairie, Texas address could not qualify as notice sent to his “last known address,” despite his failure to notify the court of his address change. Hashmukhbmai-Patel notes that if proceedings were reopened, he would be eligible for an I-601A provisional waiver of inadmissibility based on his wife’s I-130 visa petition. We review the BIA’s dismissal of an appeal from an IJ’s denial of a motion to reopen removal proceedings “under a highly deferential abuse-of- discretion standard.” Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009). The decision must be upheld “as long as it is not capricious, without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach.” Id. We review questions of law de novo and factual findings for substantial evidence. Id. Under the substantial-evidence test, “this court may not overturn the BIA’s factual findings unless the evidence compels a contrary conclusion.” Id. Under the rules applicable to Hashmukhbmai-Patel’s case, an alien may file a motion to reopen at any time to rescind an in absentia deportation order if he demonstrates that he did not receive proper notice of the deportation hearing. See 8 U.S.C. § 1252b(c)(3) (West 1993) (repealed Sept. 30, 1996). Upon being released on bond after being detained by immigration authorities, Hashmukhbmai-Patel signed the OSC and an address notification, which were written in English and Spanish and which contained several notifications and warnings required by statute, ...

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