     Case: 18-60523       Document: 00514984692         Page: 1     Date Filed: 06/05/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 18-60523                       United States Court of Appeals

                                   Summary Calendar
                                                                                 Fifth Circuit

                                                                               FILED
                                                                            June 5, 2019

OLAYO CASTILLO-CARBALLO,                                                  Lyle W. Cayce
                                                                               Clerk
                                                  Petitioner

v.

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

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A077 793 267


Before BARKSDALE, ELROD, and HO, Circuit Judges.
PER CURIAM: *
       Olayo Castillo-Carballo, a native and citizen of Honduras, petitions for
review of the decision of the Board of Immigration Appeals (BIA) dismissing
his appeal from the denial by an Immigration Judge (IJ) of his motion to reopen
and rescind a March 2000 in absentia removal order. Castillo contends the
BIA and IJ ignored the applicable precedential decisions of our court 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       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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                                   No. 18-60523

erroneously rejected his claim he did not receive notice of his immigration
proceedings.
      We review the final decision of the BIA and, as in this instance, will also
review the IJ’s ruling insofar as it affected the BIA’s decision. Zhu v. Gonzales,
493 F.3d 588, 593 (5th Cir. 2007). “Motions to reopen removal proceedings are
disfavored, and we review BIA denials of these motions under a ‘highly
deferential abuse-of-discretion standard.’” Mauricio-Benitez v. Sessions, 908
F.3d 144, 147 (5th Cir. 2018) (internal citations omitted), petition for cert. filed,
(Feb. 6, 2019) (No.18-1055).
      Under that standard, we must affirm the BIA’s decision “[s]o long as [it]
is not capricious, racially invidious, utterly without foundation in the evidence,
or otherwise so irrational that it is arbitrary rather than the result of any
perceptible rational approach”. Nunez v. Sessions, 882 F.3d 499, 505 (5th Cir.
2018) (internal quotation marks and citation omitted). “We review the BIA’s
factual findings under the substantial-evidence standard, which means that
we cannot reverse the BIA’s factual determinations unless the evidence
‘compels a contrary conclusion.’” Id. (citation omitted).
      The BIA applies a “[weaker] presumption of receipt to a Notice to Appear
or Notice of Hearing [(NOH)] sent by regular mail when the notice was properly
addressed and mailed according to normal office procedures”. Matter of M-R-
A-, 24 I. & N. Dec. 665, 673 (BIA 2008). In determining whether petitioner has
presented sufficient evidence to overcome this weaker presumption, “all
relevant evidence submitted to overcome the weaker presumption of delivery
must be considered”. Id. at 674 (citation omitted). When 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”. Hernandez v. Lynch, 825 F.3d 266, 269 (5th Cir. 2016) (footnote



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                                 No. 18-60523

omitted). Even if the alien submits an affidavit without evidentiary flaw,
however, the BIA does not necessarily err in concluding the weaker
presumption of delivery was not rebutted, so long as the BIA properly
considered all the relevant evidence. See Mauricio-Benitez, 908 F.3d at 150–
51; see also Matter of M-R-A-, 24 I. & N. Dec. at 674.
      Contrary to Castillo’s contentions, the BIA did not improperly focus on
the mailing of the hearing notice instead of Castillo’s receipt of it. Hernandez,
825 F.3d at 271 (“[T]he lack of return [of an NOH] provides some evidence
weighing in favor of delivery”.). Nor did it err by failing to reopen the removal
proceedings based solely upon the “only proof” of nondelivery, Castillo’s
affidavit. See Mauricio-Benitez, 908 F.3d at 150 (“[T]he BIA did not err in
concluding that the presumption of delivery was not rebutted by [the alien’s]
affidavit alone”.). The BIA considered all the relevant evidence and applied
the correct legal standard; its determination Castillo “failed to rebut the
presumption of delivery [by] regular mail was not ‘irrational’ or ‘arbitrary’”.
See id. at 150–51.
      Castillo contends, for the first time in his petition that: his notice to
appear was defective for failing to specify a time or place for his immigration
proceedings; and, in the light of Pereira v. Sessions, we should remand for
further consideration. 138 S. Ct. 2105 (2018); but see Mauricio-Benitez, 908
F.3d at 148 n.1 (finding Pereira’s rule regarding cancellation of removal
inapplicable to an alien’s reopening proceedings). As Castillo failed to raise
before the BIA the assertion that the notice to appear was defective, our court
lacks jurisdiction to review this contention on petition for review. See Nunez,
882 F.3d at 505 n.2; see also Omari v. Holder, 562 F.3d 314, 318–19 (5th Cir.
2009).
      DENIED IN PART and DISMISSED IN PART.



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