     Case: 10-60898     Document: 00511578582         Page: 1     Date Filed: 08/22/2011




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

                                                                            FILED
                                                                          August 22, 2011
                                     No. 10-60898
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JUAN ELVIS BARROS-BARRIENTOS,

                                                  Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A029 299 306


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Juan Elvis Barros-Barrientos, a native and citizen of Peru, petitions for
review of a final order of the Board of Immigration Appeals (BIA) dismissing his
appeal of the immigration judge’s (IJ’s) denial of his motion to reopen his 1993
deportation proceedings. After notice was sent to the address provided by
Barros-Barrientos by certified mail, Barros-Barrientos failed to appear for his
hearing in April 1993 and was ordered deported in absentia. Before the BIA and



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 10-60898   Document: 00511578582      Page: 2   Date Filed: 08/22/2011

                                 No. 10-60898

the IJ, Barros-Barrientos sought reopening of his deportation proceedings on the
basis that he did not receive notice of the hearing.
      The record reflects that the hearing notice was mailed to Barros-
Barrientos via certified mail and was returned as “unclaimed” after three
attempts were made at delivery. Thus, there is a strong presumption of effective
service that may only be overcome by the affirmative defense of nondelivery or
improper delivery by the Postal Service. See Matter of Grijalva, 21 I&N Dec. 27,
37 (BIA 1995); Maknojiya v. Gonzales, 432 F.3d 588, 589 (5th Cir. 2005). As the
BIA properly applied this legal standard in its analysis, Barros-Barrientos has
failed to show a legal error in the BIA’s decision. See Gomez-Palacios v. Holder,
560 F.3d 354, 358 (5th Cir. 2009). Furthermore, substantial evidence supports
the BIA’s finding that Barros-Barreintos’s self-serving affidavit failed to rebut
the presumption of effective service. See Grijalva, 21 I&N Dec. at 37; Chun v
INS, 40 F.3d 76, 78 (5th Cir. 1994). Accordingly, the BIA did not abuse its
discretion in denying Barros-Barrientos’s motion to reopen. See Gomez-Palacios,
560 F.3d at 358.
      Barros-Barrientos also argues that the BIA abused its discretion by not
reopening the deportation proceedings sua sponte. This court lacks jurisdiction,
however, to review the BIA’s decision not to reopen Barros-Barrientos’s
deportation proceedings sua sponte. See Enriquez-Alvarado v. Ashcroft, 371 F.3d
246, 249-50 (5th Cir. 2004); Lopez-Dubon v. Holder, 609 F.3d 642, 647 (5th Cir.
2010). Accordingly, Barros-Barrientos’s petition for review is DENIED.




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