NOT RECOMMENDED FOR PUBLICATION File Name: 21a0555n.06 Case No. 21-3441 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED JOSE C. CERRITO-ESCOBAR, ) Dec 01, 2021 ) DEBORAH S. HUNT, Clerk Petitioner, ) ) v. ) ON PETITION FOR REVIEW ) FROM THE BOARD OF MERRICK B. GARLAND, Attorney General, ) IMMIGRATION APPEALS ) Respondent. ) ) Before: BOGGS, GIBBONS, and NALBANDIAN, Circuit Judges. JULIA SMITH GIBBONS, Circuit Judge. Jose Cerrito-Escobar petitions for review of a decision of the Board of Immigration Appeals (“BIA”) affirming the denial of his motion to reopen immigration proceedings. We affirm the BIA’s decision and deny Cerrito’s petition for review. I Cerrito is a native and citizen of El Salvador. In April 1993, he entered the United States and was arrested for entering unlawfully on August 9, 1993. He was released and provided officers with his address in Holland, Michigan. That day, Cerrito was personally served with an Order to Show Cause (“OSC”), which charged that he was subject to deportation under Section 241(a)(1)(B) of the Immigration and Nationality Act. The OSC further warned, You are required to provide written notice, within five (5) days, of any change in your address or telephone number to the office of the Immigration Judge listed in this notice. Any notices will be mailed only to the last address provided by you. If you are represented, notice will be sent to your representative. Case No. 21-3441, Cerrito-Escobar v. Garland CA6 R. 8-2, Admin. R., Page ID 112. Three months later, Cerrito moved to West Branch, Michigan. On December 27, 1993, a Notice of Hearing (“NOH”) was sent to Cerrito’s address of record in Holland, Michigan, notifying him of a hearing on June 28, 1994. However, Cerrito did not receive the NOH, as he had already moved. Around April 1994, Cerrito retained attorney Richard Kessler to represent him in deportation proceedings. Kessler entered his appearance with the immigration court and noted Cerrito’s address was in West Branch, Michigan. On April 7, 1994, the immigration court sent Kessler the NOH for the June hearing. Neither Kessler nor Cerrito appeared at the hearing and Cerrito was ordered deported in absentia. A copy of the order was sent to Kessler. Cerrito did not receive the order. In 2006, Cerrito applied for and received lawful permanent residence status in the United States under a new “A” number. Five years later, he applied for naturalization. In December 2017, Cerrito was placed in removal proceedings. On March 13, 2019, Cerrito moved to reopen and rescind the in absentia order. He argued that he did not have actual notice of the hearing and his failure to appear should be excused for exceptional circumstances, namely ineffective assistance of counsel. The immigration court denied the motion, explaining that Cerrito had received notice through the OSC of deportation proceedings and notice that an NOH would be forthcoming. Cerrito failed to update the court with his new address and counsel received the NOH, constituting adequate notice to Cerrito. Further, even …
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