IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-60132

Summary Calendar

RUDY ORLANDO DIAZ-RUIZ,

Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A076 421 470

Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:

*

Rudy Orlando Diaz-Ruiz, a native and citizen of Guatemala, petitions for

review of an order of the Board of Immigration Appeals (BIA), dismissing his

appeal from an order of the immigration judge (IJ) which denied his motion to

reopen removal proceedings. Diaz contends he did not receive proper notice of his

removal hearing.

Diaz was ordered removed in absentia at age 14, after failing to appear at

his 1998 removal hearing. Almost 10 years after entry of removal, Diaz sought

United States Court of Appeals

Fifth Circuit

F I L E D

December 13, 2010

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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to reopen removal proceedings, claiming he did not properly receive notice of

removal because he: did not understand the nature of the removal process due

to his youth; was under the control of his father and it was inequitable to impute

to him his parents’ knowledge of the notice to appear (NTA); and was incapable

of appearing at the hearing without his parents’ assistance. He applied for

asylum, withholding of removal, and relief under the Convention Against

Torture, stating he feared he would be tortured or killed upon return to

Guatemala because he would be suspected of being a CIA agent.

The BIA, on de novo review, affirmed the IJ’s finding that Diaz received

proper notice of his removal hearing because the NTA: contained the date, time,

and place of the scheduled hearing; was personally served on both Diaz and his

father; and bore both of their signatures.

The BIA’s denial of a motion to reopen is reviewed under “a highly

deferential abuse-of-discretion standard, regardless of the basis of the alien’s

request for relief”. Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009).

In that regard, we “must affirm the BIA’s decision as long as it is not capricious,

without foundation in the evidence, or otherwise so irrational that it is arbitrary

rather than the result of any perceptible rational approach”. Id. “The BIA’s

factual findings are reviewed for substantial evidence . . . ; rulings of law, de

novo, deferring to the BIA’s interpretation of the immigration statutes.” MirelesValdez v. Ashcroft, 349 F.3d 213, 215 (5th Cir. 2003) (internal citations omitted).

An alien who fails to appear at a removal proceeding, after receiving

written notice, “shall be ordered removed in absentia if the [G]overnment

establishes by clear, unequivocal, and convincing evidence that the written

notice was so provided and that the alien is removable”. Gomez-Palacios, 560

F.3d at 358; 8 U.S.C. § 1229a(b)(5)(A). “[A]n in absentia removal order may be

rescinded ‘upon a motion to reopen filed at any time if the alien demonstrates

that the alien did not receive notice.’” Gomez-Palacios, 560 F.3d at 358; 8 U.S.C.

§ 1229a(b)(5)(C)(ii). Unless there is evidence that the NTA “contains information

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that is incorrect or was obtained by coercion or duress”, it is deemed “inherently

trustworthy and admissible as evidence to prove alienage and deportability”.

Matter of Barcenas, 19 I. & N. Dec. 609, 611 (BIA 1988).

As noted, Diaz and his father were each served personally with the NTA.

Their signing the NTA acknowledged both their receipt of it and its having been

explained to them orally in Spanish. Diaz does not contend that his father was

not properly served with the NTA. Moreover, at age 14, Diaz was competent to

personally accept service. See Lopez-Dubon v. Holder, 609 F.3d 642, 646 (5th

Cir. 2010) (“notice must be served on an adult only for aliens under 14 years of

age”) (emphasis added). In addition, any concerns due to his youth are cured by

his father’s having also been served with the NTA. See id. at 645-47; In re

Gomez-Gomez, 23 I. & N. Dec. 522, 524-28 (BIA 2002); see also 8 C.F.R. 1236.3.

In sum, the evidence does not compel us to conclude that Diaz established his

notice was inadequate or the denial of the motion to reopen was arbitrary,

capricious, or without evidentiary foundation. See Gomez-Palacios, 560 F.3d at

358.

Any other asserted basis for reopening Diaz’ removal proceedings,

premised on his claim that he will likely face persecution, torture, and death if

removed to Guatemala (because he will be suspected of being a CIA operative)

is abandoned: Diaz does not explain the basis for this claim or cite any record

evidence for it. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).

DENIED.

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