Summary
holding that alien who failed to apprise the immigration court of his current address and as a result did not receive actual notice of his removal hearing failed to demonstrate that he did not receive notice
Summary of this case from Gomez-Palacios v. HolderOpinion
No. 06-61113, Summary Calendar.
July 30, 2007.
Alexandre Rybakov, Hollywood, FL, pro se.
Thomas Ward Hussey, Director, U.S. Department of Justice Office of Immigration Litigation, Washington, DC, Trey Lund, U.S. Immigration and Customs Enforcement Field Office Director, New Orleans, LA, for Respondent.
Petition for Review of an Order of the Board of Immigration Appeals, No. A76 135 441.
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
Alexandre Rybakov has filed a petition for review of a final order of the Board of Immigration Appeals ("BIA") affirming the denial of his motion to reopen his deportation proceeding. Rybakov was ordered removed in absentia on February 1, 1999, when he failed to appear for his removal hearing. He argues that he did not receive notice of the hearing and that his counsel rendered ineffective assistance.
Rybakov's argument that he did not receive notice of the hearing is belied by the record. He was personally served with a notice to appear, which included his address, and was warned in his native language that he was required to keep the immigration court apprised of his address and was told of the consequences of failing to do so. Two hearing notices were mailed to Rybakov, and neither of them was returned to the immigration court as undeliverable. Rybakov admits that he moved to Michigan shortly after he was served with the notice to appear, but the record is devoid of any notice from Rybakov regarding his change of address. See Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 350 (5th Cir. 2002). Because Rybakov was informed of his duty to provide the immigration court with his address but failed to do so, he was not entitled to notice of the hearing. 8 U.S.C. § 1229a(b)(5)(B).
Rybakov's argument that he received ineffective assistance of counsel likewise fails; he did not establish that his counsel's actions prejudiced him. See Lara v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000).
The BIA did not abuse its discretion in denying the motion to reopen. See id.; United States v. Estrada-Trochez, 66 F.3d 733, 735-36 (5th Cir. 1995). Accordingly, the petition for review is DENIED.