UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-2118

SOLOMON DEBESSAY TESFAGABER, 

 Petitioner, 

 v. 

ERIC H. HOLDER, JR., Attorney General, 

 Respondent. 

On Petition for Review of an Order of the Board of Immigration 

Appeals.

Submitted: March 25, 2009 Decided: April 23, 2009 

Before MICHAEL, GREGORY, and SHEDD, Circuit Judges. 

Petition denied by unpublished per curiam opinion. 

Laura Tuell Parcher, Christian G. Vergonis, Juliet Johnson 

Karastelev, JONES DAY, Washington, D.C., for Petitioner. 

Michael F. Hertz, Acting Assistant Attorney General, Linda 

Wernery, Assistant Director, Scott Rempell, Office of 

Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, 

Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit. 

Vacated by Supreme Court, April 27, 2009
PER CURIAM: 

 Solomon Debessay Tesfagaber, a native and citizen of 

Ethiopia, petitions for review of an order of the Board of 

Immigration Appeals (“Board”) dismissing his appeal from the 

immigration judge’s order denying his motion to reopen and to 

rescind the in absentia removal order. We deny the petition for 

review. 

 We review the denial of a motion to reopen for abuse 

of discretion. 8 C.F.R. § 1003.23(b)(1)(iv) (2008); INS v. 

Doherty, 502 U.S. 314, 323-24 (1992); Barry v. Gonzales, 445 

F.3d 741, 744 (4th Cir. 2006). A denial of a motion to reopen 

must be reviewed with extreme deference, since immigration 

statutes do not contemplate reopening and the applicable 

regulations disfavor such motions. M.A. v. INS, 899 F.2d 304, 

308 (4th Cir. 1990) (en banc). This court will reverse the 

denial of a motion to reopen only if the denial is “arbitrary, 

capricious, or contrary to law.” Barry, 445 F.3d at 745. When, 

as here, the Board affirmed the immigration judge’s decision to 

deny the motion to reopen, the court reviews that decision and 

the immigration judge’s decision to the extent the Board relied 

upon it. Niang v. Gonzales, 492 F.3d 505, 511 n.8 (4th Cir. 

2007). 

 A removal order issued in absentia may be rescinded 

“upon a motion to reopen filed within 180 days after the date of 

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the order of removal if the alien demonstrates that the failure 

to appear was because of exceptional circumstances (as defined 

in subsection (e)(1) of this section).” See 8 U.S.C. 

§ 1229a(b)(5)(C)(i). Section 1229a(e)(1) provides that: 

The term “exceptional circumstances” refers to 

exceptional circumstances (such as battery or extreme 

cruelty to the alien or any child or parent of the 

alien, serious illness of the alien, or serious 

illness or death of the spouse, child, or parent of 

the alien, but not including less compelling 

circumstances) beyond the control of the alien. 

 It is uncontested that Tesfagaber did not file the 

motion to reopen within 180 days. Insofar as he argues that the 

time period is subject to equitable tolling, this is not an 

issue he raised before the Board and is not properly before this 

court because it was not exhausted. Gonahasa v. INS, 181 F.3d 

538, 544 (4th Cir. 1999). Even if he had exhausted the argument 

before the Board, he did not argue that he was diligent in his 

efforts to keep current with his immigration proceedings after 

the Board remanded the action to the immigration judge. See, 

e.g., Barry v. Mukasey, 524 F.3d 721, 724-25 (6th Cir. 2008) 

(describing factors to consider when determining whether 

equitable tolling is appropriate). 

 An in absentia removal order may be rescinded at any 

time “if the alien demonstrates that the alien did not receive 

notice” of the hearing either by service in person or by mail, 

except that if the notice specified a new time and date for the 

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hearing, written notice is not required if the alien failed to 

provide a current mailing address. 8 U.S.C. 

§ 1229a(b)(5)(C)(ii). However, Tesfagaber failed to keep the 

immigration court current with his mailing address. See 

Dominguez v. U.S. Atty Gen., 284 F.3d 1258, 1260-61 & n.4 (11th 

Cir. 2002) (holding that an alien who does not actually receive 

notice due to a failure to provide a current mailing address 

cannot demonstrate that he did not receive notice in accordance 

with paragraph (1) or (2) of § 1229(a) because § 1229a(b)(5)(B) 

states that “[n]o written notice shall be required . . . if the 

alien has failed to provide the address required under section 

1229(a)(1)(F) of this title.”) (emphasis added); see also GomezPalacios v. Holder, __ F.3d __, __, 2009 WL 388943, *4 (5th Cir. 

2009) ([I]f the alien’s failure to receive notice is “due to his 

neglect of his obligation to keep the immigration court apprised 

of his current mailing address [it] does not mean that the alien 

did not receive notice.”) (emphasis added); Sabir v. Gonzales, 

421 F.3d 456, 459 (7th Cir. 2005) (“[A]n alien should not be 

able to make himself unreachable, and then later ask to have his 

case reopened because he did not receive notice.”). Thus, 

because it was shown that the notice was sent to his last known 

address and Tesfagaber did not notify the immigration court of a 

current address at which he could be contacted, he cannot now 

seek rescission of the removal order based on not receiving 

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notice. Thus, we find the Board did not abuse its discretion in 

affirming the immigration judge’s denial of Tesfagaber’s motion 

to reopen. Nor do we find Tesfagaber was denied due process. 

See, e.g, Rusu v. INS, 296 F.3d 316, 321-22 (4th Cir. 2002) (the 

fundamental requirement of due process is the opportunity to be 

heard at a meaningful time and manner) (emphasis added). 

Clearly, Tesfagaber was provided with the opportunity to be 

heard, which he missed due to his failure to keep the 

immigration court informed of a current mailing address. 

 Insofar as Tesfagaber claims he is entitled to relief 

under the Convention Against Torture (“CAT”), because he was 

found removable for having committed an aggravated felony, we do 

not have jurisdiction to review the immigration judge’s factual 

findings in this regard. Saintha v. Mukasey, 516 F.3d 243, 248-

49 (4th Cir.), cert denied, 129 S. Ct. 595 (2008). We further 

find that the Board’s decision not to rescind the in absentia 

removal order would not have an unconscionable result. See, 

e.g., Singh v. INS, 295 F.3d 1037, 1040 (9th Cir. 2002) (alien 

was the beneficiary of an approved visa petition and would not 

have been deported but for his failure to appear). 

 Accordingly, we deny the petition for review. We 

dispense with oral argument because the facts and legal 

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contentions are adequately presented in the materials before the 

court and argument would not aid the decisional process. 

PETITION DENIED