United States Court of Appeals For the Eighth Circuit ___________________________ No. 22-2817 ___________________________ German Cabrera Diaz Petitioner v. Merrick B. Garland, Attorney General of the United States Respondent ____________ Petition for Review of an Order of the Board of Immigration Appeals ____________ Submitted: March 14, 2023 Filed: July 13, 2023 [Unpublished] ____________ Before SHEPHERD, ERICKSON, and GRASZ, Circuit Judges. ____________ PER CURIAM. German Cabrera Diaz petitions for review of the Board of Immigration Appeals’s (“BIA”) denial of his motion to reopen his removal proceedings after he failed to appear at his removal hearing. We deny the petition. A native and citizen of Mexico, Cabrera Diaz unlawfully entered the United States at an undisclosed time and location. In 2011, Cabrera Diaz was convicted of driving under the influence of alcohol in California. The Department of Homeland Security (“DHS”) charged Cabrera Diaz with removability from the United States under 8 U.S.C. § 1182(a)(6)(A)(i), alleging he was a noncitizen present in the United States without being admitted or paroled. Cabrera Diaz conceded the charge of removability and applied for cancellation of removal, adjustment of status, withholding of removal, and protection under the Convention Against Torture. In 2019, after Cabrera Diaz moved to Hampton, Iowa, venue was changed from San Francisco, California, to Omaha, Nebraska. DHS served notice of a January 2020 hearing on Cabrera Diaz’s attorney at the time. The attorney later moved to withdraw, explaining that Cabrera Diaz no longer wanted his representation. Neither Cabrera Diaz nor his attorney appeared at the hearing. As a courtesy, the Immigration Judge called Cabrera Diaz’s attorney, who explained that he had advised Cabrera Diaz of his obligation to attend the hearing and the consequences he would face for not doing so. The Immigration Judge then ordered Cabrera Diaz removed in absentia. In May 2020, Cabrera Diaz, who was represented by new counsel, filed a motion to reopen his removal proceedings. Cabrera Diaz asserted he had not received notice of the January hearing, but he did not include an affidavit or any other evidence supporting that assertion. Nonetheless, the Immigration Judge accepted the motion and denied it on the merits, citing both Cabrera Diaz’s previous attorney’s statements that Cabrera Diaz was aware of the hearing and the lack of evidence to the contrary. On appeal to the BIA, Cabrera Diaz argued the Immigration Judge’s finding that he did have notice, based in part on his previous attorney’s credibility, was clearly erroneous. The BIA dismissed Cabrera Diaz’s appeal. Cabrera Diaz petitioned this court for review of the BIA’s dismissal. “We review for abuse of discretion the BIA’s denial of a motion to reopen.” Alemu v. Mukasey, 509 F.3d 907, 909 (8th Cir. 2007). “The BIA abuses its discretion where it gives no rational explanation for its decision; departs from its established -2- policies without explanation; relies on impermissible factors or legal error; or ignores or distorts the record evidence.” Id. Cabrera Diaz fails to identify any aspect of the BIA’s decision that lacked rational explanation, inexplicably departed …
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