United States Court of Appeals For the Eighth Circuit ___________________________ No. 20-1117 ___________________________ Komlanvi Mawunyo Avitso lllllllllllllllllllllPetitioner v. William P. Barr, Attorney General of United States lllllllllllllllllllllRespondent ____________ Petition for Review of an Order of the Board of Immigration Appeals ____________ Submitted: August 25, 2020 Filed: September 22, 2020 ____________ Before LOKEN, GRUENDER, and KELLY, Circuit Judges. ____________ LOKEN, Circuit Judge. Komlanvi Mawunyo Avitso, a native and citizen of Togo, petitions for review of an order of the Board of Immigration Appeals (“BIA”) upholding the Immigration Judge’s (“IJ”) denial of a motion to reopen an order removing Avitso in absentia. See 8 U.S.C. § 1229a(b)(5). We deny the petition. I. Background. Avitso entered the United States as a student in 2004 and married a United States citizen in 2006. In August and September 2011, following a lengthy investigation, U.S. Citizenship and Immigration Services (“USCIS”) denied a Form I-130 Petition for Alien Relative filed by Avitso’s wife on his behalf, and a Form I- 485 application for adjustment of status filed by Avitso, after concluding they had entered into a fraudulent marriage to procure immigration benefits. These decisions made Avitso removable. See 8 U.S.C. §§ 1182(a)(6)(C)(i), 1227(a)(1)(A); Abuya v. Sessions, 873 F.3d 650, 652 (8th Cir. 2017). On September 27, the Department of Homeland Security (“DHS”) mailed Avitso a Notice to Appear (“NTA”), the document that commences removal proceedings, alleging that he had procured a benefit by marriage fraud. The NTA was mailed to Avitso at the address where USCIS investigators had been told he resided until December 2010. On June 1, 2012, DHS mailed an identical NTA to a different address, the home address for Avitso USCIS recorded that day on a Form I-213, Record of Deportable/Inadmissible Alien. USCIS investigators had been told Avitso resided at this address in March and June 2011. The immigration court mailed a Notice of Hearing (“NOH”) to the same address on June 5. The notice was returned, marked “moved left no address,” “unable to forward,” “return to sender.” The court mailed a second NOH to that address on September 10, adding “NE” to the address and rescheduling the hearing for January 15, 2013. That mailing was also returned as undeliverable. Avitso failed to appear for the hearing. The IJ found him removable as charged and entered the in absentia removal order. See 8 U.S.C. § 1229a(b)(5)(A). On February 14, 2019, now remarried and represented by new counsel, Avitso filed the motion to reopen at issue, alleging that he “did not personally receive the [October 2011 NTA] but a copy was forwarded to him by his then immigration attorney.” The motion was captioned, “Respondent’s Motion to Reopen Based on -2- Lozada Ineffective Assistance of Counsel & Pereira.”1 Avitso argued the in absentia removal order should be rescinded and his removal proceedings reopened because his failure to appear at the January 2013 hearing was caused by the ineffective assistance of his former attorney, warranting relief under Matter of Lozada, 19 I. & N. Dec. 637 (BIA ...
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