PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 09-2558

____________

DANIEL O. RAMOS-OLIVIERI, 

 Petitioner

v.

ATTORNEY GENERAL OF THE 

UNITED STATES OF AMERICA,

 Respondent

____________

PETITION FOR REVIEW OF AN ORDER 

OF THE BOARD OF IMMIGRATION APPEALS 

(Agency No. A095-833-985)

Immigration Judge: Hon. Henry S. Dogin

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Submitted Under Third Circuit LAR 34.1(a)

September 14, 2010

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Before: SLOVITER, BARRY and SMITH, Circuit Judges

(Opinion Filed: September 17, 2010)

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Lauren Anselowitz, Esq. 

Frank & York 

60 Park Place 

Suite 1010 

Newark, NJ 07102 
2

Counsel for Petitioner

Marion E. Guyton, Esq. 

Eric H. Holder, Jr., Esq. 

Thomas W. Hussey, Esq. 

Joanna L. Watson, Esq. 

United States Department of Justice 

Office of Immigration Litigation, Civil Division 

P.O. Box 878 

Ben Franklin Station 

Washington, DC 20044 

Anthony P. Nicastro, Esq. 

United States Department of Justice 

Office of Immigration Litigation 

8040N 

1331 Pennsylvania Avenue, N.W. 

Washington, DC 20530-0000 

Counsel for Respondent

____________ 

OPINION OF THE COURT

____________

BARRY, Circuit Judge

Petitioner Daniel Ramos-Olivieri, a native and citizen of 

Uruguay, entered the United States in February 2001 as a 

nonimmigrant visitor with authorization to stay for six months. 

He overstayed his visa. On April 6, 2004, the Department of 

Homeland Security (“DHS”) issued a warrant for his arrest and 

took him into custody. Ramos was personally served with a 

Notice to Appear (“NTA”), charging that he was removable 

pursuant to 8 U.S.C. § 1227(a)(1)(B) as an alien who remained 

in the United States for a time longer than permitted. The date 

and time of the removal hearing were to be set. The NTA 

reflected Ramos’s current address in North Bergen, and, 
3

according to the NTA, Ramos was orally notified in Spanish of 

the charges against him and the consequences of failing to 

appear for his removal hearing. The NTA stated in English that 

an alien is required to immediately inform the Immigration 

Court of a change in address. 

Ramos was released from custody on his own 

recognizance. As a condition of that release, Ramos was not to 

change his place of residence without first securing written 

permission from his immigration officer. Ramos’s signature 

appears on the Order of Release following his acknowledgment 

that he understood his conditions of release. 

Six months later, in October, 2004, Ramos moved from 

his North Bergen apartment without notifying immigration 

authorities of his change of address. The Immigration Court 

sent him a Notice of Hearing by regular mail to the North 

Bergen address on or about December 4, 2004, for a hearing to 

take place on January 5, 2005. The hearing took place in 

Ramos’s absence and he was ordered removed in absentia to 

Uruguay.

In March 2007, Ramos married a naturalized United 

States citizen, Susana Pineyro. When the couple consulted an 

immigration attorney to begin the paperwork to adjust his status, 

Ramos learned of the Order of Removal. In April 2007, he filed 

a motion to reopen removal proceedings pursuant to 8 C.F.R. § 

1003.23(b)(4)(iii)(A)(2). He emphasized that he was requesting 

reopening because, had he known about the hearing, he would 

have appeared. He stated that he was at his North Bergen 

apartment for six months and waited a reasonable amount of 

time before he moved; however, he never received notice of the 

hearing. 

The Immigration Judge (“IJ”) denied the motion to 

reopen. The IJ reasoned that the NTA had been personally 

served on Ramos, and once an alien has been served with a 

NTA, it is incumbent upon the alien to make U.S. Citizenship & 

Immigration Services aware of any change of address. 
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Furthermore, when Ramos was released from immigration 

custody in April 2004, it was on the condition that he not change 

his place of residence without first securing written permission 

from immigration authorities. The IJ concluded that, because 

Ramos admitted that he moved prior to the mailing of his 

hearing notice, and the record was devoid of any evidence that 

he complied with his obligation to notify the Immigration Court 

of a change in address, no notice of his hearing was required. 

Thus, reopening was unwarranted. 

Ramos appealed to the Board of Immigration Appeals 

(“Board”), contending that he did not actually receive notice of 

his removal hearing because he moved before it was mailed to 

him, and he was not informed in Spanish that he was obligated 

to inform the Immigration Court of any change of address. The 

Board dismissed his appeal. It reasoned that the NTA, which 

explains the consequences of failing to appear, was read to 

Ramos in Spanish, the hearing notice was sent to the address he 

provided, and an immigration officer had certified that Ramos 

was notified that he was required to inform the Immigration 

Court of any change of address. It also faulted Ramos for 

making no effort over a three-year period to learn the status of 

his immigration proceedings. It held that the law does not 

require written notice if an alien has failed to provide the address 

required under 8 U.S.C. § 1229(a)(1)(F). See also 8 U.S.C. § 

1229a(b)(5)(B) (“No written notice shall be required under 

subparagraph (A) if the alien has failed to provide the address 

required under [8 U.S.C. § 1229(a)(1)(F)].”); In re Villalba, 21 I. 

& N. Dec. 842, 845 (BIA 1997) (language contained in Order to 

Show Cause and Notice of Hearing, which provided that notice 

of deportation hearings will be sent only to alien’s last known 

address, and failure to provide an address may result in an in 

absentia hearing, is reasonable construction of notice 

requirement). Albeit recognizing that Ramos was now married 

to a United States citizen, the Board concluded that Ramos was 

statutorily ineligible to adjust his status because he failed to 

appear for his removal hearing, see 8 U.S.C. § 1229a(b)(7). It 

concluded, as well, that even if the record supported his claim 

that he was not notified of his removal hearing, which it did not, 
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Ramos’s motion to reopen was untimely. 

Ramos petitioned for review, and the DHS filed an 

unopposed motion to remand so that the Board could determine 

whether its decision should be reconsidered in light of Santana 

Gonzalez v. Attorney General, 506 F.3d 274 (3d Cir. 2007). We 

granted the motion. 

On remand, the Board again dismissed the appeal, 

concluding that Santana Gonzalez was inapplicable and thus 

reconsideration was unwarranted. The Board repeated much of 

what it had said before, emphasizing that Ramos was personally 

served with the NTA, which was read to him in Spanish and 

included notification of the requirement that he inform the 

Immigration Court of any change of address. Moreover, Ramos 

was informed of this requirement when he was released from 

custody, and the record was devoid of any evidence that he 

informed the Immigration Court or any immigration officer that 

he had moved. The Board distinguished Santana Gonzalez by 

noting that, although the alien there was no longer at the address 

she had provided, a responsible person was available at the 

address to forward her mail. Because Ramos did not provide 

notice of a change of address, the Board again concluded that 

notice was not required under 8 U.S.C. § 1229a(b)(5)(B). 

Ramos timely petitioned for review. We have 

jurisdiction under 8 U.S.C. § 1252(a), (b)(1). “We review the 

denial of a motion to reopen a removal order entered in absentia

for abuse of discretion.” Cabrera-Perez v. Gonzales, 456 F.3d 

109, 115 (3d Cir. 2006) (citing INS v. Doherty, 502 U.S. 314, 

323-24 (1992)). “Under the abuse of discretion standard, the 

Board’s decision is reversible only if it is ‘arbitrary, irrational, or 

contrary to law.’” Barker v. Ashcroft, 382 F.3d 313, 316 (3d 

Cir. 2003) (quoting Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 

1994)). 

An alien must be provided written notice of his or her 

removal proceedings. 8 U.S.C. § 1229(a)(1). The notice must 

inform the alien of, among other things, “[t]he time and the 
6

place at which the proceedings will be held.” 8 U.S.C. § 1229 

(a)(1)(G)(i). Written notice must be given to the alien in person, 

or, “if personal service is not practicable, through service by 

mail.” 8 U.S.C. § 1229(a)(1), (2)(A). Written notice by the 

Attorney General is sufficient if “provided at the most recent 

address provided” by the alien. 8 U.S.C. § 1229a(b)(5)(A). 

Although written notice is sufficient if mailed to the most 

recent address provided by the alien, the statute also provides 

that an in absentia removal order may be rescinded, upon a 

motion to reopen filed at any time, where the alien demonstrates 

that he did not “receive” notice of the hearing. 8 U.S.C. § 

1229a(b)(5)(C)(ii). In Santana Gonzalez, we considered two 

questions: “(1) what presumption of receipt attaches to a notice 

of hearing sent by regular mail; and (2) how an alien claiming 

non-receipt of a notice sent by regular mail can rebut that 

presumption, thereby entitling her to an evidentiary hearing on 

that claim.” 506 F.3d at 274-75. Santana Gonzalez holds that 

the fact that notice was sent by regular mail to the last address 

provided by the alien does not necessarily establish that the alien 

has received the notice under § 1229a(b)(5)(C)(ii). The word 

“receive” indicates that the focus of the rescission inquiry, in 

contrast to the focus of the initial entry of the in absentia order, 

is on the actual receipt of the required notice and not whether the 

notice was properly mailed. Santana Gonzalez, 506 F.3d at 277. 

In Santana Gonzalez, we adopted a standard providing 

that a strong presumption of receipt applies only when a notice 

from an Immigration Court is sent by certified mail; a weaker 

presumption of receipt applies when the notice is sent by regular 

mail. Id. at 279. An alien’s affidavit claiming non-receipt of a 

notice sent by regular mail, along with corroborating 

circumstantial evidence, may be sufficient to raise a factual issue 

requiring an evidentiary hearing before the IJ. See id. at 280. 

But this surely does not mean that the failure to receive notice of 

a removal hearing entitles an alien to rescission if that failure is 

the result of the alien’s neglect of his or her obligation to keep 

the Immigration Court informed of a current address. This is 

especially so when the obligation is also a condition of release. 
7

Santana Gonzalez does not hold that an alien is entitled to an 

evidentiary hearing when the alien both fails to arrange for a 

responsible person who still resides at the alien’s former address 

to forward all mail he or she receives and the alien fails to notify 

immigration authorities of a change in address. Indeed, we did 

not order the IJ to rescind the in absentia order in Santana 

Gonzalez, and we noted that “it is significant that petitioner 

failed to follow the clear requirement that she give written notice 

of any change in her address, a fact that needs to be considered 

by the IJ in making the ultimate decision. Id. at 281; see also

Gomez-Palacios v. Holder, 560 F.3d 354, 360 (5th Cir. 2009) (in

absentia removal order would not be revoked where alien failed 

to keep Immigration Court informed of his current mailing 

address); Popa v. Holder, 571 F.3d 890, 898 (9th Cir. 2009) 

(same). 

It is important to note, though, that in Santana Gonzalez, 

the record disclosed that a responsible person, the alien’s uncle, 

remained at her former address to forward her mail. 506 F.3d at 

279. Unlike that alien, Ramos made no arrangements with a 

responsible person to forward his mail nor did he provide the 

postal service with a forwarding address. In addition, the alien 

in Santana Gonzalez endeavored to contact immigration 

authorities to provide updated mailing information. Ramos 

made no such affirmative efforts, despite being notified of his 

obligation to do so in both the NTA and as a condition of his 

release from custody.1

Furthermore, the alien in Santana Gonzalez at all times 

sought a hearing to adjust her status, a form of relief to which 

she was entitled under the Cuban Adjustment Act, and, 

consequently, she “had little to gain by failing to appear at the 

hearing.” 506 F.3d at 280-81. We concluded that this 

corroborating circumstantial evidence, together with her 

assertion of non-receipt, might be sufficient to rebut the less 

 

 1

 Sembiring v. Gonzales, 499 F.3d 981, 984 (9th Cir. 2007), on 

which Ramos also relies, involved an alien whose address did 

not change, and thus is distinguishable as well.
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stringent presumption of receipt. Id. at 281. Here, however, 

Ramos does not even assert that he was eligible for any form of 

relief from removal (except voluntary departure) prior to his 

marriage to Pineyro in March, 2007. He thus would have had an 

incentive to avoid his removal hearing. Accordingly, an 

evidentiary hearing was not called for and the Board acted 

within its discretion in denying his motion to reopen.

Finally, although an alien may seek reopening in order to 

apply for adjustment of status, the Board properly concluded 

that Ramos is statutorily ineligible for such relief for a period of 

10 years pursuant to 8 U.S.C. § 1229a(b)(7). 

For the foregoing reasons, we will deny the petition for 

review.