UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

ENIL NOE MACIAS CHEBES, 

 Petitioner,

v.

ROBERT M. WILKINSON, Acting 

Attorney General of the United 

States, *

 Respondent.

No. 20-9515

(Petition for Review)

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ORDER AND JUDGMENT**

_________________________________

Before BACHARACH, LUCERO, and PHILLIPS, Circuit Judges.

_________________________________

The term “notice” often derives its meaning from the context. The 

context here involves a motion to reopen proceedings when a noncitizen is 

* During the pendency of this appeal, Mr. Robert M. Wilkinson became 

Acting Attorney General of the United States. We’ve thus substituted 

General Wilkinson as the respondent. See Fed. R. App. P. 43(c)(2).

** We conclude that oral argument would not materially help us to 

decide the appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). 

So we have decided the appeal based on the record and the parties’ briefs.

Our order and judgment does not constitute binding precedent except 

under the doctrines of law of the case, res judicata, and collateral estoppel. 

But the order and judgment may be cited for its persuasive value if 

otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).

FILED

United States Court of Appeals

Tenth Circuit

February 22, 2021

Christopher M. Wolpert

Clerk of Court
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ordered removed in absentia. In this context, immigration judges can 

rescind removal orders upon proof that the noncitizens didn’t receive

notice of their removal hearings. 8 U.S.C. § 1229a(b)(5)(C)(ii). But what if 

the noncitizens live in others’ homes and the homeowners don’t give the 

noncitizens their mail? Have the noncitizens received their notices?

This was the issue for Mr. Macias Chebes. Mr. Chebes’s removal 

hearing was set on September 12, 2013. At the time, he was living with his 

aunt, whose address he had provided for the notice. The postal service 

properly delivered Mr. Chebes’s notice to his aunt’s address. She received 

the notice but didn’t give it to Mr. Chebes. No one attributes ill motives to 

the aunt; she attributes the lapse to her condition, suffering from thyroid 

cancer and depression. 

Irrespective of her reasons, Mr. Chebes didn’t know about the 

hearing date; so he didn’t appear, and the immigration judge ordered 

removal in absentia. Mr. Chebes tried to reopen the removal proceedings, 

pointing out that he hadn’t seen the notice. The issue is whether Mr. 

Chebes received the notice through its delivery to the aunt’s house. See

8 U.S.C. § 1229a(b)(5)(C)(ii). On this issue, Mr. Chebes bears the burden. 

Gurung v. Ashcroft, 371 F.3d 718, 722 (10th Cir. 2004).

The Board of Immigration Appeals concluded that Mr. Chebes had 

not satisfied his burden, relying on its prior opinion in In re G-Y-R-, 23 

I. & N. Dec. 181, 189 (BIA 2001) (en banc). There the Board had 
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addressed the noncitizen’s obligation to provide an address to the 

Immigration and Naturalization Service. Id. at 186. In discussing what 

constitutes a sufficient address, the Board considered whether a noncitizen 

obtains notice when it is delivered to the right address but is mishandled 

within the household. Id. at 189. In this situation, the Board commented 

that the noncitizen receives the notice even without personally seeing it. 

Id. The Board applied this language to Mr. Chebes, concluding that he had 

received the notice even if his aunt had not given it to him. Mr. Chebes 

argues that the Board erred in applying this language from G-Y-R-. We 

disagree. 

We review the Board’s conclusion under the abuse-of-discretion 

standard. Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th Cir. 2004). In 

applying this standard, we treat a legal error as an abuse of discretion. 

Elzour v. Ashcroft, 378 F.3d 1143, 1150 n.9 (10th Cir. 2004). 

As Mr. Chebes points out, reopening is appropriate when the 

noncitizen did not actually receive the notice. Matter of M-R-A-, 24 I. & N. 

Dec. 665, 672 (BIA 2008). But when the notice reaches the right house but 

not the noncitizen, has the noncitizen “actually received” the notice? We 

answer “yes.”

To reopen the removal proceedings, Mr. Chebes needed to show that 

he had not received a “notice in accordance with Paragraph 1 or 2” of 8 

U.S.C. § 1229(a). 8 U.S.C. § 1229a(b)(5)(C)(ii). Paragraph 2 permits 
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notice by mail (8 U.S.C. § 1229(a)(2)(A)), but doesn’t require personal 

service. And service by mail is sufficient if it is sent to the noncitizen’s 

last known address. Gurung v. Ashcroft, 371 F.3d 718, 721 (10th Cir. 

2004).

Mr. Chebes argues that to reopen the proceedings, he needed only to 

show that he hadn’t personally received the notice. For this argument, he 

relies on Gurung v. Ashcroft, 371 F.3d 718 (10th Cir. 2004), and Matter of 

M-R-A-, 24 I. & N. Dec. 665 (BIA 2008). These opinions do not apply. MR-A- differs: there the noncitizen presented evidence that the notice had 

not been received at his address of record. 24 I. & N. Dec. at 666. And in 

Gurung, the noncitizen relied on a conclusory assertion that he hadn’t 

received the notice. 371 F.3d at 722. Though the context was different, we 

suggested in Gurung that “actual receipt” takes place when the notice is 

delivered to the right address. To support a claim that he did not receive 

notice, we said that the noncitizen had to show improper delivery or 

nondelivery that wasn’t “due to the noncitizen’s failure to provide an 

address where he could receive mail.” Id.

Mr. Chebes didn’t show improper delivery or nondelivery, for he 

acknowledged that his aunt had received the notice. See Nunez v. Sessions, 

882 F.3d 499, 507 (5th Cir. 2018) (distinguishing between “potentially 

failed delivery” and a failure of the “internal workings of a household”).

His claim rests on the failure of his aunt to give him mail that had been 
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delivered to his residence. In G-Y-R-, the Board concluded that this sort of 

error does not invalidate notice by mail. See pp. 2–3, above. 

The Board has applied G-Y-R- when deciding whether a noncitizen 

has “received” a notice for purposes of a motion to reopen. In re M-D-, 23 

I. & N. Dec. 540, 540, 547 (BIA 2002). The two circuits to address the 

issue have also applied G-Y-R- when addressing motions to reopen. See 

Nunez, 882 F.3d at 506 (applying G-Y-R- to determine whether a noncitizen 

received notice for purposes of a motion to reopen); Elmquist v. Mukasey, 

265 F. App’x 619, 619 (9th Cir. 2008) (per curiam) (applying G-Y-R- to 

uphold the denial of a motion to reopen when the notice was delivered to 

the correct address). We agree with these circuits. G-Y-R- didn’t address a 

motion to reopen, but explained that a notice is received even when it’s 

mishandled by someone at the noncitizen’s address. See pp. 2–3, above.

Mr. Chebes argues that even if the Board had applied the right legal 

test, we must remand for failure to consider various factors affecting the 

existence of actual receipt of the notice. See Matter of M-R-A-, 24 I. & N. 

Dec. 665, 674 (BIA 2008). But Mr. Chebes conceded his aunt’s receipt of 

the notice that had been delivered to the correct address. Given this 

concession, other factors wouldn’t have affected the Board’s refusal to 

reopen the proceedings. 

* * *
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We conclude that the Board acted within its discretion in upholding 

the denial of Mr. Chebes’s motion to reopen. 

Entered for the Court

Robert E. Bacharach

Circuit Judge