     Case: 17-60768    Document: 00514895544     Page: 1   Date Filed: 04/01/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit


                                  No. 17-60768
                                                                         FILED
                                                                      April 1, 2019
                                                                    Lyle W. Cayce
ROSA MARIA NAVARRETE-LOPEZ,                                              Clerk

             Petitioner

v.

WILLIAM P. BARR, U. S. ATTORNEY GENERAL,

             Respondent




                      Petition for Review of an Order of the
                         Board of Immigration Appeals


Before HIGGINBOTHAM, SMITH, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Petitioner Rosa Maria Navarrete-Lopez asks this court to reverse a
decision by the Board of Immigration Appeals denying her motion to reopen
removal proceedings. Navarrete-Lopez alleges that she never received a Notice
of Hearing. Finding no abuse of discretion in the Board’s determination that
Navarrete-Lopez failed to rebut the presumption of receipt, we deny the
petition.
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                                       No. 17-60768

                                   BACKGROUND 1
       Rosa Maria Navarrete-Lopez is a native and citizen of El Salvador. On
March 14, 2004, she entered the United States without being admitted or
paroled. That same day, the Department of Homeland Security (“DHS”) served
her personally with a Notice to Appear (“NTA”), charging her with being
removable and notifying her of a hearing on a date and at a time “to be set.”
The NTA also informed Navarrete-Lopez that she had an obligation to keep
immigration authorities apprised of her current mailing address. 2 At that time,
Navarrete-Lopez told immigration officers that she would reside and receive
mail at an address on South Dairy Ashford Road in Houston, Texas.
       A short while later, on April 3, Navarrete-Lopez filed a change-of-
address form designating a new address on Valley View Lane, also in Houston.
The immigration court received the form on April 8.
       What happened next is the subject of debate. According to the
respondent, a “Notice of Hearing” (“NOH”) was sent to Navarrete-Lopez at the
Valley View address on June 30 via regular mail. Navarrete-Lopez does not
dispute that there is a document in the record entitled “Notice of Hearing” that,
on its face, reflects a regular mail send date around that time. 3 That document
is undisputedly addressed to Navarrete-Lopez, at the Valley View address, and
notices a hearing set for August 24, 2004 at 9:00 a.m. There is no evidence that
it was ever returned as undeliverable. But Navarrete-Lopez insists that she
never received it.



       1 The following facts are undisputed unless otherwise specified.
       2 Navarette-Lopez also received the NTA orally in Spanish.
       3 The NOH bears “May 13, 2004” after the word “Date” at the top of the page. In a

section at the bottom of the page entitled “Certificate of Service,” the NOA bears a
handwritten date of “6-30-04.” Neither party has explained this six-week lag. Although the
respondent cites June 30 as the send date and the petitioner cites May 13, this distinction is
immaterial to the ultimate issue.

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                                   No. 17-60768

      The parties agree that Navarrete-Lopez did not attend the August 24
hearing, and that an Immigration Judge (“IJ”) entered an in absentia order of
removal at that time.
      Seven years passed. In late 2011, Navarrete-Lopez’s daughter filed an I-
130 Petition for Alien Relative on behalf of Navarrete-Lopez. DHS approved
the petition in April 2012. According to Navarrete-Lopez, after the petition was
approved, she consulted with a lawyer about adjusting her status to that of a
lawful permanent resident. To that end, she explains, her attorney made a
Freedom of Information Act (“FOIA”) request. The request apparently
uncovered the August 2004 in absentia removal order, about which Navarrete-
Lopez claims she had no prior knowledge. 4
      Then five more years passed. On February 15, 2017, Navarrete-Lopez
filed a motion to reopen the removal proceedings that had commenced in 2004.
An affidavit from her and an affidavit from her daughter accompanied the
motion. Navarrete-Lopez’s affidavit recounts the original change of address
from South Dairy Ashford Road to Valley View and states that she had moved
from place to place in subsequent years. The affidavit explains that,
nevertheless, Valley View remained—from 2004 up to that present time—a
suitable address at which to receive mail because it was her daughter’s stable
residence. Both affidavits affirm that an NOH was never received at Valley
View. Neither affidavit discusses the FOIA request or the passage of five years
between Navarrete-Lopez’s discovery of the removal order and her motion to
reopen.
      The IJ denied Navarrete-Lopez’s motion to reopen, finding that she had
not dislodged the presumption that the NOH was delivered to her mailing



      4  The FOIA request is not in the record but the respondent does not dispute its
existence.

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address. The BIA affirmed, reasoning that the “totality of the circumstances”
supported the IJ’s conclusion. Specifically, the BIA observed that the NOH was
not returned as undeliverable, that there was no evidence corroborating
Navarrete-Lopez’s daughter’s residency at the Valley View address, that
Navarrete-Lopez had not submitted a prior application for relief indicating an
incentive to appear, and that Navarrete-Lopez demonstrated a lack of “due
diligence.”
      Navarrete-Lopez timely filed a petition for review in this court.
                          STANDARD OF REVIEW
      We review the denial of a motion to reopen under “a highly deferential
abuse-of-discretion standard.” Garcia-Nuñez v. Sessions, 882 F.3d 499, 505
(5th Cir. 2018). The BIA abuses its discretion “when it issues a decision that is
capricious, irrational, utterly without foundation in the evidence, based on
legally erroneous interpretations of statutes or regulations, or based on
unexplained departures from regulations or established policies.” Barrios-
Cantarero v. Holder, 772 F.3d 1019, 1021 (5th Cir. 2014). The BIA’s factual
findings are reviewed for substantial evidence and may not be overturned
“unless the evidence compels a contrary conclusion.” Torres Hernandez v.
Lynch, 825 F.3d 266, 268 (5th Cir. 2016) (quotation omitted).
                                DISCUSSION
      In ruling on a motion to reopen, “the focus is whether the alien actually
received the required notice and not whether the notice was properly mailed.”
Garcia-Nuñez, 882 F.3d at 506 (quotation omitted). The court nevertheless
presumes “that public officials, including Postal Service employees, properly
discharge their duties.” Maknojiya v. Gonzales, 432 F.3d 588, 589 (5th Cir.
2005). There is a “strong presumption of effective service” when the notice is
sent by certified mail. Torres Hernandez, 825 F.3d at 269 (quotation omitted).


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                                  No. 17-60768

The presumption is “weaker” when notice is sent by regular mail, as it was
here. Id.
      Under BIA precedent, “all relevant evidence,” both direct and
circumstantial, should be considered to determine whether the petitioner has
overcome the weaker presumption of effective service, and an “inflexible and
rigid application of the presumption of delivery is not appropriate . . . .” Matter
of M-R-A-, 24 I. & N. Dec. 665, 674–76 (BIA 2008). The BIA has outlined the
following list of factors to consider in reaching that determination:
      (1) the respondent’s affidavit;
      (2) affidavits from family members or other individuals who are
      knowledgeable about the facts relevant to whether notice was
      received;
      (3) the respondent’s actions upon learning of the in absentia order,
      and whether due diligence was exercised in seeking to redress the
      situation;
      (4) any prior affirmative application for relief, indicating that the
      respondent had an incentive to appear;
      (5) any prior application for relief filed with the Immigration Court
      or any prima facie evidence in the record or the respondent’s
      motion of statutory eligibility for relief, indicating that the
      respondent had an incentive to appear;
      (6) the respondent’s previous attendance at Immigration Court
      hearings, if applicable; and
      (7) any other circumstances or evidence indicating possible
      nonreceipt of notice.
Id. at 674. That list is, importantly, not exhaustive. Id. (“We emphasize that
these are just examples of the types of evidence that can support a motion to
reopen. Immigration Judges are neither required to deny reopening if exactly
such evidence is not provided nor obliged to grant a motion, even if every type




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                                       No. 17-60768

of evidence is submitted. Each case must be evaluated based on its own
particular circumstances and evidence.”).
       The BIA, applying the M-R-A- factors and looking to the “totality of the
circumstances,” did not abuse its discretion in determining that Navarrete-
Lopez failed to overcome the weaker presumption of effective service. As the
BIA observed, the NOH was not returned as undeliverable and Navarrete-
Lopez did not indicate an incentive to appear by submitting a prior affirmative
application     for    relief.   The     BIA’s     conclusion      that    Navarrete-Lopez
demonstrated a lack of “due diligence” is also supported by the record. 5
       Navarrete-Lopez urges that it was error for the BIA to highlight the lack
of evidence corroborating her daughter’s residency at the claimed address
during the relevant time period. To be sure, under our precedent, affidavits
that lack any evidentiary flaw—despite their self-serving nature—may be
taken as competent, standalone evidence to support a claim that notice was


       5    There appears to be some tension in the case law regarding how to assess “due
diligence.” Under the BIA’s own precedent in M-R-A-, the date that the removal order is
discovered—not the date the removal order is entered—starts the due-diligence clock. 24 I.
& N. Dec. at 674 (naming a relevant factor as “the respondent’s actions upon learning of the
in absentia order, and whether due diligence was exercised in seeking to redress the
situation”) (emphasis added). Our court has recognized that timeframe. See, e.g., Mauricio-
Benitez v. Sessions, 908 F.3d 144, 151 (5th Cir. 2018) (“[T]he BIA did not err in refusing to
permit reopening despite the fact that Mauricio-Benitez sought counsel and filed his motion
soon after discovering the in absentia order through a FOIA request.”) (emphasis added). But
we have also affirmed the BIA’s due-diligence finding on the basis of a petitioner’s actions (or
inaction) from the date of receiving the NTA to the date of filing the motion to reopen. See,
e.g., id. (“Mauricio-Benitez—despite having been personally served with a NTA informing him
that he would receive a notice setting a hearing date and time—made no effort to correct [a
spelling error on] his NTA, update his mailing address with the court when he moved six
months after receiving the NTA, or otherwise follow up on his immigration status for thirteen
years.”) (emphasis added). And we have affirmed due-diligence findings based on delay
between the removal hearing and the motion to reopen. See, e.g., Sosa-Perdomo v. Lynch, 644
F. App'x 320, 321 (5th Cir. 2016) (“[T]he BIA did not misapply [M–R–A–] by taking into
account Sosa–Perdomo’s lack of diligence in failing to file her motion to reopen until over nine
years after she was ordered removed in absentia.”) (emphasis added). We need not resolve
this thicket today because in this case, under any measure, the BIA would not have abused
its discretion in making the due-diligence finding.

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never received. Maknojiya, 432 F.3d at 590 (“In the case of failed mail delivery
when regular mail is used, the only proof is the alien’s statement that he or
she did not receive notice.”) (citation omitted); see also Torres Hernandez, 825
F.3d at 269 (“[W]hen service is furnished via regular mail, an alien’s statement
in an affidavit that is without evidentiary flaw may be sufficient to rebut the
presumption of effective service.”); Settim v. Gonzales, 171 F. App’x 436, 437
(5th Cir. 2006) (“Where the correspondence is sent by regular mail, and where
there is no other evidence that the petitioner was attempting to avoid
proceedings, the petitioner’s statement that he or she did not receive the
correspondence is sufficient evidence that mail delivery failed.”); Barahona-
Cardona v. Holder, 417 F. App’x 397, 399 (5th Cir. 2011) (“[A]n affidavit of non-
receipt can be sufficient to rebut the weaker presumption of delivery that
arises under regular mail.”). But we note that M-R-A- permits consideration of
“other circumstances or evidence indicating possible nonreceipt of notice.” 24 I
& N. Dec. at 674. At its core, the M-R-A- inquiry is fact-specific, flexible, and
multi-factorial. In this case, there were various circumstances—including no
non-deliverable return, no prior affirmative applications for relief, and lack of
due diligence—weighing in favor of the presumption of receipt. Because the
BIA reached a final determination, properly, based on the “totality of the
circumstances,” and under our highly deferential standard of review, we find
no abuse of discretion and accordingly DENY the petition.




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