NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 17

- 3 212

___________ SHAILESHKUMAR V. PATEL ,

Petitioner

v. ATTORN EY GENERAL OF THE UNITED STATES OF AMERICA , Respondent

____________________________________ On Petition for Review of a n Order of the Board of Immigration Appeals (Agency No. A205

- 409

- 64 0 ) Immigration Judge: John B. Carle

____________________________________ Submitted P ursuant to Third Circuit LAR 34.1(a)

May 25, 2018 Before: McKEE , SHWARTZ , and NYGAARD , Circuit Judges

(Opini on filed : August 2, 2018 )

___________ OPINION *

__________ NYGAARD, Circuit Judge

.

* This disposition is not an opini on of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

Shaileshkumar Patel petitions us to review the Board of Immigration Appea ls’ decision to deny h is motion to reopen. 1 The Immigration J udge entered a removal order
in abstentia , but Patel claims he did not receive notice of the hearing at which this
occurred. On this basis, he argues the denial of his motion to reopen was impr oper. We will deny the petition.
The Immigration Judge ordered Patel’s removal in abstentia o n April 15, 2013

. Patel filed a Motion To Reopen on February 24, 2017, argu ing that failing to receive notice of the hearing is an exceptiona l circumstance just if ying resci ssion of the Removal
O rder

. 8 U.S.C. § 1229a(b)(5)(C)((i). But the four

- year gap between the date of the
removal order and Patel’s motion

— far in excess of the maximum of 180 days allowed in
the statute

—

precludes reopening proceedings under th at provision. His petition also can
be read as relying on s ection ( ii ) of the same statute , which applies “if the alien did not
receive notice in accordance with paragraph (1) or (2) of section 1229(a) of this title

. . . and the failure to appear was thr ough no fault of the alien. ” § 1229a(b)(5)(C)((ii). However, even under s ection ( ii ) , he fails to provide enough evidence to grant his motion. The record shows that Patel appeared at the Nogales, Arizona port of entry on
November 12, 2012. He did not h ave valid entry documents and the Department of Homeland Security took him into custody , detaining him at Eloy, Arizona . He requested asylum at the time and, o n February 11, 2013, the Department determined that he had a

1 The Board issued a decision without an opinion. Therefore, our review encompasses the Immigration Judge’s opinion supporting the removal order. Dia v. Ashcroft , 353 F.3d 228 , 245 (3d Cir. 2003) (en banc).3

credible fear of torture . O n Febru a ry 12, 2013, he was served with a Notice to Appear (NTA). The NTA did not specify a date or time for the hearing . But it did state the consequences of failing to be at the hearing , and it informed him of his duty to notify the Government of any change o f address. The Certificate of Service on the NTA indicates that this information was provided to him in person and was also delivered orally in his native language of Gujarati. He later received a Notice of Hearing , dated February 15,
2013 , that informed him of a M aster Calendar hearing scheduled on March 19, 2013 , at Eloy, Arizona

. 2
When Patel was p aroled on February 22 , 2013, h e filed a motion for change of venue, providing the address “2607 Ebright Ro ad, Wilmington, DE 19810 ” for future
communication s. The Immigration Judge granted the unopposed motion on February 27, 2013, changing venue to Philadelphia, Pa. A Notice of Hearing was sent to Patel by regular mail to the Wilmington address on March 7, 2013 , informing h im of a Master Calendar hearing o n April 15, 2013 , in Philadelphia, Pa. The Notice was returned unopened. A label on the envelope stated “return to sender ,” “ not deliverable as
addressed ,” “ unable to forward.” The notation “moved wrong address ,” “ return to sender” w as also hand written on it. Patel did not appear at the April 15 hearing and so the Immigration Judge issued a removal order in abstentia

.

2 The Notice established that the legal basis for his removal was entry without va lid entry document s. 8 U.S.C.§ 1182(a)(7)(i)(I). There is a signature at the bottom of the notice given to Patel , but details of ho w the document was served are not filled in. We note, however, that Patel wa s still detained at the Eloy, A Z facility at that time.4

Patel does not dispute that he knew he had a duty to give an acc urate address to
the Government and to keep it updated. Rather, he says that the envelope with the label
and notations on it is not “clear, unequivocal and convincing evidence” (§ 1229a(C)(ii)) showing that the Government attempted proper notice at the Wilmington address because
it was posted as regular ma il, not certified ma il. But t he Immigration and Nationality Act only specifies “service of mail” (§ 1229(a)), it no longer r equires certified mail delivery

. Compare 8 U.S.C. § 1252b(a)(2)(B) (repealed 1996) ( “[I] f personal service is not practicable, written notice shall be given by certified mail . . . .” )

. Accordingly, w e conclude that the returned envelope is sufficient to show the Government fulfilled its obligation to give notice. And upon receiving the returned envelope, the Government was under no further duty to att empt to provide notice. § 1229a(b)(5)(B). Patel never explains his absence from the April 15, 2013 hearing, except to say he did not get not ice of it. Therefore, Patel falls far short of meeting his burden to show that
h is failure to attend the hearing was through no fault of h is own. Th is leads us to
conclude that the BIA did not err by affirming the Immigration Judge’s order that den ied the motion to reopen

. For these reasons, we will deny the Petition for Review.