     Case: 17-60207      Document: 00514633382         Page: 1    Date Filed: 09/07/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 17-60207                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
LETICIA MOGOLLAN-PASTEN,                                                September 7, 2018
                                                                           Lyle W. Cayce
              Petitioner                                                        Clerk

v.

JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,

              Respondent




                         Petition for Review of an Order of
                         the Board of Immigration Appeals
                               BIA No. A072 210 826


Before STEWART, Chief Judge, and WIENER and HIGGINSON, Circuit
Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
       Leticia Mogollan-Pasten is a native and citizen of Mexico. She sought
entry into the United States on November 29, 1992, claiming to be a United
States Citizen. She lacked valid entry documents, however, and was detained
for being possibly excludable as either an alien seeking admission by means of
fraud or as an alien seeking admission without valid entry documents. See 8


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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U.S.C. §§ 1182(a)(6)(C) & (7)(A). In an interview later that day, she admitted
to being a Mexican citizen and to falsely claiming United States citizenship.
The Immigration and Naturalization Service (“INS”) immediately charged
Mogollan-Pasten as being excludable and issued her a Form I-122, “Notice to
Applicant for Admission Detained for Hearing before an Immigration Judge.”
The notice informed Mogollan-Pasten that a hearing “will be scheduled” and
that “[i]t is understood that you want the notice of hearing to be sent to you at
the following address: 1615 Calle Licenciado Soto y Gama, Col. Francisco I.
Madero, Juarez, Chih. Mexico.” She was then permitted to return to Mexico to
await notification of her hearing.
      The next day, November 30, 1992, Mogollan-Pasten reentered the
United States without inspection. Ten days later, on December 10, 1992, the
Immigration Court mailed a Notice of Hearing to Mogollan-Pasten at the
address she had provided, informing her that a hearing had been scheduled for
January 21, 1993. On December 21, 1992, the notice was returned to the
Immigration Court with a handwritten note on the envelope appearing to
state: “No hay el numero que cita,” or “There is not the number you cite.”
Mogollan-Pasten did not appear at the hearing on January 21, and was found
deportable by the Immigration Judge (“IJ”) and ordered excluded in absentia
on January 25, 1993.
      On September 28, 2016, Mogollan-Pasten filed with the Immigration
Court a motion to reopen her exclusion proceedings and rescind the in absentia
exclusion and deportation order. She argued that reopening the proceedings
and rescinding the order were appropriate because she had not received notice
of the hearing. See 8 U.S.C. § 1229a(b)(5)(C)(ii). Her motion explained that
while she had reentered the United States on November 30, 1992, her family
remained at the address she had provided and yet never received notice of the
hearing. The IJ denied the motion, concluding that Mogollan-Pasten had failed
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                                      No. 17-60207
to support her claims with relevant evidence and therefore failed to rebut the
presumption of effective service. 1 Mogollan-Pasten appealed to the Board of
Immigration Appeals (“BIA”). The BIA dismissed the appeal, concluding that
Mogollan-Pasten had “not provided any evidence establishing that she was
able to receive mail at the address that she provided.”
       We review the denial of a motion to reopen under “a highly deferential
abuse-of-discretion standard.” Gomez-Palacios v. Holder, 560 F.3d 354, 358
(5th Cir. 2009). We, therefore, “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. We review factual findings under the substantial-evidence test, deferring
to the BIA’s factual findings “unless the evidence compels a contrary
conclusion.” Id.
       When a Notice of Hearing is properly addressed and sent by regular mail
according to normal post office procedures, there is a “weak[]” presumption
that the notice was received. Matter of M-R-A-, 24 I. & N. Dec. 665, 673 (BIA
2008); see also Hernandez v. Lynch, 825 F.3d 266, 269 (5th Cir. 2016) (“The
presumption of valid service via regular mail is weaker than that for service
via certified mail.”). However, even where it is undisputed that the notice was
not actually received, an in absentia removal order should not be rescinded
when the lack of notice was due to the alien’s failure to provide the immigration
court with an accurate and up-to-date mailing address. See Gomez-Palacios,
560 F.3d at 360–61. Accordingly, in Gomez-Palacios, we denied a petition for



       1As noted by the IJ, where notice of an exclusion hearing was sent by certified mail,
there is a presumption of effective service that may rebutted only by “substantial and
probative” evidence. Maknojiya v. Gonzales, 432 F.3d 588, 589 (5th Cir. 2005) (quoting
Matter of Grijalva, 21 I. & N. Dec. 27, 37–38 (BIA 1995)). But where, as here, notice of an
exclusion hearing was sent by regular mail, the presumption of effective service is weaker.
See Matter of M-R-A-, 24 I. & N. Dec. 665, 673 (BIA 2008).
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review under similar circumstances where the Notice of Hearing “was mailed
to the last address provided by Gomez-Palacios and returned to the
immigration court stamped ‘attempted, not known,’” but where Gomez-
Palacios had failed to submit any record evidence “showing that the address
provided to the immigration court was in fact his mailing address.” Id. at 361.
      Similarly, Mogollan-Pasten has failed to submit any record evidence that
she was able to receive mail at the address she provided, that the address was
accurate, or that her family continued to reside there. That failure is fatal to
her claim. See 8 C.F.R. § 1003.23(b)(4)(iii)(B) (“A motion to reopen exclusion
hearings on the basis that the Immigration Judge improperly entered an order
of exclusion in absentia must be supported by evidence that the alien had
reasonable cause for his failure to appear.”).      Mogollan-Pasten has not
submitted any affidavits or other evidence supporting the arguments raised in
her motion. She may not rely on arguments in pleadings alone. See I.N.S. v.
Phinpathya, 464 U.S. 183, 188 n.6 (1984). Under the circumstances, we cannot
say that the BIA abused its discretion.
      For the foregoing reasons, the petition for review is DENIED.




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