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)

_________________________________ 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 noncit izen is

* During the pendency of this appeal, Mr. Ro bert M. Wilkinson became Acting Attorney General of the United States. We’ve thus substituted General Wilkinson as the r espondent
. See Fed. R. App. P. 43(c)(2)
.

** We conclude that oral argument would not material ly 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 l aw 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 Court2 ordered removed in absentia. In this context, immigration judge s can rescind removal orders upon proof that the noncitizen s didn’t receive notice of the ir removal hearing s . 8 U.S.C. § 1229a(b)(5)( C )(ii). But what if the noncitizen s live in others ’ homes and the homeowner s don’t give the noncitizen s their mail? Ha ve the noncitizen s 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 t o 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 p roceedings, 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. S ee 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 it s prior opinion in In re G

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- , 23 I. & N. Dec. 181, 189 (BIA 2001) (en banc) . There the Board had3 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 receive s the notice even without personally seeing it
. Id. The Board applied this language to Mr. Chebes, concluding that he had
r eceived 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

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- . We disagree. We review the Board’s conclusion under the abuse

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- 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

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- , 24 I. & N. Dec. 665, 672 (BIA 2008) . But when the notice reaches the right house but not the noncitizen, has the noncitizen “actua lly received” the notice? We answer “yes.” To reopen the removal proceedings, Mr. Chebes needed to show that he had not receive d 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 permits4 notic e 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

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- , 24 I. & N. Dec. 665 (BIA 2008) . These opinions do not apply. M

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- 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 i n 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 t he 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 re sts on the failure of his aunt to give him mail that had been5 delivered to his residence . In G

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- , the Board concluded that this sort of error does not invalidate notice by mail. See p p. 2

– 3, above. The Board has applied G

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- when deciding whether a noncitizen has “received” a notice for purposes of a motion to reopen. In re M

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- , 23 I. & N. Dec. 540, 540, 547 (BIA 2002) . The two circuits to address the issue have also applied G

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- when addressing motions to reopen. See Nunez , 882 F.3d at 506 (applying G

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- 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

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- to uphold the denial of a motion to reopen wh e n the notice was delivered to the correct address ). We agree with these circuits. G

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- 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. C hebes 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

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- , 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. * * *6 We conclude that the Board acted wi thin its discretion in upholding the denial of Mr. Chebes’s motion to reopen. Entered for the Court

Robert E. Bacharach Circuit Judge