United States Court of Appeals

For the Eighth Circuit

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No. 22-2817

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German Cabrera Diaz

 Petitioner

v.

Merrick B. Garland, Attorney General of the United States

 Respondent

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Petition for Review of an Order of the

Board of Immigration Appeals

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Submitted: March 14, 2023

Filed: July 13, 2023

[Unpublished]

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Before SHEPHERD, ERICKSON, and GRASZ, Circuit Judges. 

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PER CURIAM. 

German Cabrera Diaz petitions for review of the Board of Immigration 

Appeals’s (“BIA”) denial of his motion to reopen his removal proceedings after he 

failed to appear at his removal hearing. We deny the petition. 
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A native and citizen of Mexico, Cabrera Diaz unlawfully entered the United 

States at an undisclosed time and location. In 2011, Cabrera Diaz was convicted of 

driving under the influence of alcohol in California. The Department of Homeland 

Security (“DHS”) charged Cabrera Diaz with removability from the United States 

under 8 U.S.C. § 1182(a)(6)(A)(i), alleging he was a noncitizen present in the United 

States without being admitted or paroled. Cabrera Diaz conceded the charge of 

removability and applied for cancellation of removal, adjustment of status, 

withholding of removal, and protection under the Convention Against Torture. In 

2019, after Cabrera Diaz moved to Hampton, Iowa, venue was changed from San 

Francisco, California, to Omaha, Nebraska. DHS served notice of a January 2020 

hearing on Cabrera Diaz’s attorney at the time. The attorney later moved to 

withdraw, explaining that Cabrera Diaz no longer wanted his representation. Neither 

Cabrera Diaz nor his attorney appeared at the hearing. As a courtesy, the 

Immigration Judge called Cabrera Diaz’s attorney, who explained that he had 

advised Cabrera Diaz of his obligation to attend the hearing and the consequences 

he would face for not doing so. The Immigration Judge then ordered Cabrera Diaz

removed in absentia. 

 

In May 2020, Cabrera Diaz, who was represented by new counsel, filed a 

motion to reopen his removal proceedings. Cabrera Diaz asserted he had not 

received notice of the January hearing, but he did not include an affidavit or any 

other evidence supporting that assertion. Nonetheless, the Immigration Judge

accepted the motion and denied it on the merits, citing both Cabrera Diaz’s previous

attorney’s statements that Cabrera Diaz was aware of the hearing and the lack of 

evidence to the contrary. On appeal to the BIA, Cabrera Diaz argued the 

Immigration Judge’s finding that he did have notice, based in part on his previous

attorney’s credibility, was clearly erroneous. The BIA dismissed Cabrera Diaz’s 

appeal. Cabrera Diaz petitioned this court for review of the BIA’s dismissal.

“We review for abuse of discretion the BIA’s denial of a motion to reopen.” 

Alemu v. Mukasey, 509 F.3d 907, 909 (8th Cir. 2007). “The BIA abuses its discretion 

where it gives no rational explanation for its decision; departs from its established 
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policies without explanation; relies on impermissible factors or legal error; or 

ignores or distorts the record evidence.” Id.

 Cabrera Diaz fails to identify any aspect of the BIA’s decision that lacked

rational explanation, inexplicably departed from policy, relied on legal error, or 

ignored record evidence. See id. Instead, Cabrera Diaz first argues the BIA abused 

its discretion because it did not properly address his argument or evidence when 

determining whether the Immigration Judge abused her discretion. Specifically, 

Cabrera Diaz argues the Immigration Judge did so by accepting his motion to reopen 

and denying it on the merits as opposed to rejecting it as a “defective” motion for 

failing to comply with “format requirements” contained in the Immigration Court 

Practice Manual. By purportedly “ignoring” this procedural argument, Cabrera Diaz 

claims the BIA abused its discretion. 

We reject this argument because it mischaracterizes the record. In his appeal 

to the BIA, Cabrera Diaz only made passing reference to the Immigration Judge’s 

authority to summarily reject Cabrera Diaz’s motion rather than accept the motion 

and rule on the merits. And he did so only in advance of his argument the 

Immigration Judge erred in relying on other evidence in the record to conclude 

Cabrera Diaz had notice of the hearing. We do not fault the BIA for failing to 

directly respond to an argument Cabrera Diaz failed to fully present on appeal. See 

Gallegos v. Garland, 25 F.4th 1087, 1092 (8th Cir. 2022) (explaining it is 

unnecessary for the BIA to “write an exegesis on every contention” so long as it 

provides “sufficient reasoning for our review”). Further, the merits of Cabrera 

Diaz’s procedural argument are dubious. Even assuming Cabrera Diaz’s motion to 

reopen was “defective” and could have been rejected according to the Immigration 

Court Practice Manual, that same manual expressly permitted the Immigration Judge

to accept a “defective” filing and rule on the merits of his motion. 

Neither did the BIA otherwise abuse its discretion in addressing Cabrera

Diaz’s argument and evidence. Cabrera Diaz failed to present any evidence 

supporting the contention he was unaware of the January 2020 hearing, only 
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presenting his notice of hearing from 2017 in San Francisco. As the BIA noted, 

Cabrera Diaz’s counsel was aware of the change in venue to Omaha, making that

evidence irrelevant. Under 8 U.S.C. § 1229a(b)(5)(A): 

Any alien who, after written notice . . . has been provided to the alien 

or the alien’s counsel of record, does not attend a proceeding under this 

section, shall be ordered removed in absentia if the [Immigration and 

Naturalization] Service establishes by clear, unequivocal, and 

convincing evidence that the written notice was so provided and that 

the alien is removable[.] 

We also reject Cabrera Diaz’s argument that the BIA improperly upheld the 

denial of the motion to reopen under a different rationale than utilized by the 

Immigration Judge. Although the BIA could have provided a more thorough

explanation as to why Cabrera Diaz had notice, both the BIA and the Immigration 

Judge reasoned reopening was improper because Cabrera Diaz had notice through

his attorney at the time. 

Accordingly, we deny the petition for review.

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