Pursuant to Fed. R. App. P. 43(c)(2), Attorney General *

Michael B. Mukasey has been substituted for former Attorney General

Alberto R. Gonzáles as the respondent herein.

United States Court of Appeals

For the First Circuit

No. 06-2776

SERGIO ARMANDO ARAGÓN-MUÑÓZ,

Petitioner,

v.

MICHAEL B. MUKASEY, ATTORNEY GENERAL,*

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF THE

BOARD OF IMMIGRATION APPEALS

Before

 Torruella, Lynch, 

and Lipez, Circuit Judges.

Christopher J. Stender and Stender and Pope, PC on brief for

petitioner.

Shahrzad Baghai, Trial Attorney, Peter D. Keisler, Assistant

Attorney General, and Anthony W. Norwood, Senior Litigation

Counsel, on brief for respondent.

March 21, 2008
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LIPEZ, Circuit Judge. Sergio Armando Aragón-Muñóz, a

citizen of Guatemala, seeks review of the order of the Board of

Immigration Appeals ("BIA" or "Board") denying his motion to reopen

his removal proceedings. On May 25, 2000, after Aragón-Muñóz

failed to appear at a hearing on his removability and asylum claim,

the Immigration Judge ("IJ") ordered him removed in absentia. More

than four years later, Aragón-Muñóz filed a motion to reopen on the

ground that he had not received the Notice to Appear ("NTA")

because he had moved to Arizona. He further argued that even if he

had received the NTA, the notice was insufficient because he was

entitled to an oral warning in Spanish, his native language, of the

consequences of failing to appear. 

The IJ denied his motion to reopen without issuing an

opinion. Aragón-Muñóz appealed to the BIA, which remanded the case

for a full explanation of the reasons for the denial. In response,

the IJ entered a decision explaining that Aragón-Muñóz had failed

to adduce any evidence that he had changed his address. The BIA

affirmed, elaborating on the lack of evidence in the record. We

deny Aragón-Muñóz's petition for review.

I.

Aragón-Muñóz entered the United States on or about August

20, 1994. On September 14, 1994, he filed an application for

asylum, which listed his address as "309 West 12th Street,

Lexington, Nebraska 68850." On August 24, 1999, he attended his
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asylum interview in Boston, Massachusetts. The record contains two

copies of Aragón-Muñóz's asylum application. One shows the

Nebraska address. The second contains hand-written edits, labeled

as correction "(1)," changing the address to "40 Huldah St.,

Providence, Rhode Island 02909." This copy of the application

includes Aragón-Muñóz's signature, dated August 24, 1999,

acknowledging, inter alia, that correction "(1)" had been made by

him or at his request.

On March 20, 2000, the Immigration and Naturalization

Service sent an NTA to Aragón-Muñóz via regular mail to the Rhode

Island address indicated on the edited asylum application. The NTA

ordered Aragón-Muñóz to appear before an IJ in Boston on May 25,

2000. He failed to appear at the scheduled hearing. The

government proceeded in absentia, resting on the application for

asylum containing the Rhode Island address and the NTA, which was

mailed to that address. The IJ ordered that Aragón-Muñóz be

removed to Guatemala. A copy of the removal order was sent via

regular mail to the Rhode Island address on the asylum application.

On April 20, 2004, Aragón-Muñóz filed a motion to reopen

removal proceedings. He alleged that he did not receive the NTA;

that he had given an Arizona address to the asylum officer at his

August 1999 interview; and that he was assured that his new address

would be noted in the file, although "[t]his apparently did not

happen." He also argued that, because he had never appeared in
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immigration court, "he was never advised in Spanish of the

consequences of failure to appear."

The IJ denied Aragón-Muñóz's motion without a written

opinion. She indicated in a hand-written notation on the motion

paper that the motion had been denied because Aragón-Muñóz had

failed to state any facts "which could possibly warrant reopening."

Following Aragón-Muñóz's appeal to the BIA, the Board remanded the

case to the IJ "for inclusion of an appropriate decision," finding

the hand-written notation insufficient.

The IJ then issued a decision explaining that AragónMuñóz had failed to present evidence that he did not receive proper

notice of the hearing. Specifically, she stated that the NTA had

been sent to Aragón-Muñóz's last known address, as indicated on the

corrected asylum application. She noted that Aragón-Muñóz had

failed to provide any evidence of an address change and that the

record contained no change of address form.

Aragón-Muñóz once again appealed to the BIA, arguing that

the hand-written edits to his asylum application had been made in

1994, not at the August 1999 interview. He also asserted that he

sought relief through adjustment of status because he had married

a lawful permanent resident of the United States and had an

approved I-130, Petition for Alien Relative. However, he provided

no documentary evidence of the I-130 or the marriage itself. 
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The Board affirmed. In its decision, the Board rejected

Aragón-Muñóz's claim that the hand-written edits had been made in

1994. It stated that these corrections appear to have been made

during the August 1999 asylum interview. It supported this

conclusion by noting that a photocopy of an employment

authorization card, issued by the state of Rhode Island in February

1999 with an expiration date of February 2000, accompanied the

edited asylum application. The Board also noted that the affidavit

included with Aragón-Muñóz's motion to reopen "fails to identify

the exact address he purportedly lived at in Arizona, nor does it

indicate when he allegedly moved." Moreover, the Board noted that

Aragón-Muñóz had not provided any evidence that he ever resided at

any Arizona address. This petition for review followed.

II.

We review the denial of Aragón-Muñóz's motion to reopen

for abuse of discretion. Grigous v. Gonzales, 460 F.3d 156, 159

(1st Cir. 2006). We will find an abuse of discretion "'where the

BIA misinterprets the law, or acts either arbitrarily or

capriciously.'" Id. (quoting Maindrond v. Ashcroft, 385 F.3d 98,

100 (1st Cir. 2004)). We defer to the factual determinations made

by the BIA if they are based on "reasonable, substantial, and

probative evidence." Ymeri v. Ashcroft, 387 F.3d 12, 17 (1st Cir.

2004). Where, as here, the Board issues its own opinion and does
The full text of this section provides: 1

Any alien who, after written notice

required under paragraph (1) or (2) of section

1229(a) of this title 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

Service establishes by clear, unequivocal, and

convincing evidence that the written notice

was so provided and that the alien is

removable (as defined in subsection (e)(2) of

this section). The written notice by the

Attorney General shall be considered

sufficient for purposes of this subparagraph

if provided at the most recent address

provided under section 1229(a)(1)(F) of this

title.

8 U.S.C. § 1229a(b)(5)(A).

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not adopt the IJ's decision, we review the decision of the Board.

Romilus v. Ashcroft, 385 F.3d 1, 5 (1st Cir. 2004).

An alien's failure to appear at a scheduled immigration

hearing results in mandatory entry of an in absentia removal order

if the government establishes that written notice of the hearing

was given and that the alien is removable as charged. 8 U.S.C.

§ 1229a(b)(5)(A). A notice to appear, as described in 8 U.S.C. 1

§ 1229(a), sent to the most recent address provided by the alien is

deemed sufficient written notice to satisfy the statute. 8 U.S.C.

§ 1229a(b)(5)(A); see also 8 U.S.C. § 1229(c)("Service by mail

under this section shall be sufficient if there is proof of

attempted delivery to the last address provided by the

alien . . . ."). If the alien has failed to provide the government
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with his most recent address, no notice is required before the in

absentia order may be issued. 8 U.S.C. § 1229a(b)(5)(B).

There are several ways for an alien who has been ordered

removed in absentia to reopen his proceedings. First, the statute

provides that an alien who has received notice may seek rescission

of the in absentia order by filing a motion to reopen within 180

days and showing that his "failure to appear was because of

exceptional circumstances." 8 U.S.C. § 1229a(b)(5)(C)(i). AragónMuñóz makes no claim of exceptional circumstances nor was his

application filed within 180 days.

Second, the statute provides that an in absentia order

may be rescinded at any time if the alien demonstrates that he did

not receive notice of the hearing. 8 U.S.C. § 1229a(b)(5)(C)(ii).

The alien bears the burden of demonstrating that notice was never

received. Sousa v. Ashcroft, 393 F.3d 271, 275 (1st Cir. 2005). 

The Board found that Aragón-Muñóz failed to meet his

burden of demonstrating that he did not receive the NTA. The

record does not compel us to conclude otherwise. The BIA

reasonably concluded that the hand-written edits to the asylum

application had been made at the August 1999 interview and that the

attached copy of Aragón-Muñóz's 1999-2000 Rhode Island employment

authorization card supported this view. We add that Aragón-Muñóz's

1999 signature acknowledging the correction also strongly supports

the conclusion that the change was made in 1999 and not 1994. As
An alien may also be able to avoid the consequences of an in 2

absentia removal order by meeting the general requirements for a

motion to reopen removal proceedings. See 8 C.F.R.

§ 1003.23(b)(1)-(2). Aragón-Muñóz does not provide any developed

argument that he has met these general requirements, and as we

discuss infra in Part III, he has not, in fact, satisfied the

general requirements for a motion to reopen.

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the BIA noted, Aragón-Muñóz introduced no affirmative evidence of

where he was living in March 2000 when the NTA was sent to the

Rhode Island address. Hence, there is no affirmative evidence,

other than Aragón-Muñóz's vague assertion that he lived somewhere

in Arizona at the time, to support the contention that he did not

receive the NTA. Accordingly, the BIA did not abuse its discretion

in denying the motion to reopen.2

III.

Aragón-Muñóz also contends that he is entitled to

reopening of his removal proceedings because he was not provided

with an oral warning in Spanish of the consequences of failing to

appear at the hearing. He relies on 8 U.S.C. § 1229a(b)(7), which

provides: 

Any alien against whom a final order of

removal is entered in absentia under this

subsection and who, at the time of the notice

. . . was provided oral notice, either in the

alien's native language or in another language

the alien understands, of the time and place

of the proceedings and of the consequences

under this paragraph of failing, other than

because of exceptional circumstances . . . to

attend a proceeding under this section, shall

not be eligible for relief under [8 U.S.C.

§§ 1229b, 1229c, 1255, 1258, or 1259] for a
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period of 10 years after the date of the entry

of the final order of removal.

However, Aragón-Muñóz misunderstands this provision. It operates

as a ten-year bar to future eligibility for certain forms of

discretionary relief when oral notice in the alien's native

language is given prior to entry of the in absentia removal order.

Grigous, 460 F.3d at 161. Although the statutory bar applies if

oral notice was given, the statute does not purport to require such

notice. As we made clear in Grigous, the government's failure to

provide oral warnings in an alien's native language does not mean

that he is "automatically entitled to reopening." Id. at 162

(emphasis in original). On the contrary, the failure to give oral

warnings means only that relief is not precluded by the statute and

"that he must still meet the requirements for motions to reopen

under the general regulations." Id. Those regulations require

that a motion to reopen "shall state the new facts that will be

proven at a hearing to be held if the motion is granted" and be

supported by "the appropriate application for relief and all

supporting documents." 8 C.F.R. § 1003.23(b)(3). 

Aragón-Muñóz did not introduce any new facts in support

of his asylum application and did not include any documentary

evidence in support of his contention that he is now entitled to an

adjustment of status based on his marriage to a legal permanent

resident. Accordingly, the absence of oral notice is not relevant

because Aragón-Muñóz did not meet his burden under the general
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regulations governing motions to reopen. We deny his petition for

review.

Petition denied.