Removal; Notice of the removal hearing; 8 USC §§ 1229(a)(1) & (2); Pereira v. Sessions; Hernandez-Perez v. Whitaker; Garcia-Romo v. Barr; Cruz-Gomez v. Lynch; Camaj v. INS (Unpub. 6th Cir.); In re Grijalva (BIA); § 1229(a)(1)(F); Motion to reopen; § 1229a(b)(5)(C)(ii); Santos-Santos v. Barr; Timchenko v. Holder (Unpub. 6th Cir.; Matter of M-R-A- (BIA); Joshi v. Ashcroft (7th Cir.); Thompson v. Lynch; Ly v. Holder (Unpub. 6th Cir.); Yanez-Pena v. Barr (5th Cir.); Review of an in absentia removal order; §§ 1229a(b)(5)(A)-(D); Shabo v. Sessions; Mata v. Lynch; Kucana v. Holder; Camaj v. Holder; § 1252(b)(4)(B); Board of Immigration Appeals (BIA); Immigration judge (IJ)

The court upheld the BIA’s denial of petitioner-Valadez’s motion to reopen his 2003 removal proceeding based on his delay in filing and where he failed to show that he lacked the required notice of hearing. He entered the country illegally when he was 15 to join his father. After a brush with the law, he was ordered removed. He did not attend the hearing. Over the years, he continued to reenter the country illegally and be removed. In 2018, he was charged with illegal reentry. He then moved to reopen his original removal proceeding, claiming that he never received notice of the hearing. The IJ rejected this claim, and the BIA affirmed. The court first noted the BIA’s “presumption that an immigrant has received the required notice if it is properly mailed[,]” and that none of the four hearing notices had been returned as undeliverable. Additionally, Valadez had signed the initial notice to appear. Significantly, the IJ and the BIA cited his lack of diligence in trying “to rescind the removal order after learning of it by no later than” 8/08. The court reviewed the § 1229(a)(1) and (2) notice paragraphs cross-referenced in § 1229a(b)(5)(C)(ii). It also considered that it is the immigrants’ burden “to ‘demonstrate[]’ the lack of notice, so the burden of proof switches to them after a judge issues” an in absentia removal order. In considering a petition for review of such a removal order, the court’s review is confined to “‘(i) the validity of the notice provided to the alien, (ii) the reasons for the alien’s not attending the proceeding, and (iii) whether or not the alien is removable.’” It held that the BIA “could reasonably conclude that Valadez did, in fact, receive notice in conformity with all requirements in § 1229(a)(1) and (2).” The initial notice contained all but the hearing date, and the next notice sent out two weeks later contained the missing date. Case law has held that “two written communications in combination can meet § 1229(a)(1)’s requirements.” Later notices included the consequences for failing to appear. He signed the first notice, and the other notices were sent to an address he specified. Although there were affidavits attesting that neither he nor his aunt and uncle received the notices, “a reasonable adjudicator could conclude that Valadez failed to overcome the presumption that he received the mailed notices.” The court denied his petition for review.