     Case: 15-60116    Document: 00513539969     Page: 1   Date Filed: 06/08/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                  No. 15-60116                  United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
MARTIN TORRES HERNANDEZ,                                            June 8, 2016
                                                                  Lyle W. Cayce
             Petitioner                                                Clerk

v.

LORETTA LYNCH, U. S. ATTORNEY GENERAL,

             Respondent




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


Before WIENER, PRADO, and OWEN, Circuit Judges.
WIENER, Circuit Judge:
      Petitioner Torres Hernandez was ordered removed in abstentia on
January 13, 2010. He filed a motion to reopen on the basis that he was unaware
that a notice to appear had been issued years earlier and he never received a
notice of a hearing. The Board of Immigration Appeals (“BIA”) affirmed the
decision of the Immigration Judge (“IJ”) denying the motion. We grant the
petition for review and remand for further consideration.
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                                  No. 15-60116
                                        I.
                       FACTS AND PROCEEDINGS
      On October 14, 2009, the Department of Homeland Security (“DHS”)
issued a Notice to Appear (“NTA”) alleging that Torres Hernandez, a native
and citizen of Mexico who entered the United States as an immigrant, had been
convicted in Texas state court of cocaine possession in 1993. The NTA charged
that Torres Hernandez was removable as an alien convicted of a controlled
substance offense and ordered him to appear for an immigration hearing at a
time to be set later. The certificate of service indicates that the NTA was served
on Torres Hernandez via regular mail, addressed to “547 Beaver Bend,
Houston, Texas 77037.”
      Two weeks later, on October 29, 2009, the immigration court sent Torres
Hernandez a hearing notice, again via regular mail, notifying him that his
hearing would take place on January 13, 2010. The hearing notice was sent to
the same mailing address for Torres Hernandez as was the NTA. After Torres
Hernandez failed to appear for his immigration hearing, the IJ ordered him
removed to Mexico for reasons set forth in the NTA.
      Approximately three years later, in January 2014, Torres Hernandez,
through counsel, filed a motion to reopen. He asserted in his motion and in a
supporting affidavit that he was unaware that a NTA had been issued and that
he never received notice that he was to appear before the IJ. In his affidavit,
dated January 18, 2013, Torres Hernandez swore:
      2. “Approximately one year ago, ICE officers went to look for me at
      my sister’s house. That is how I found out that I had immigration
      problems.”

      3. “I went to the offices of Manuel Solis, who filed a FOIA on my
      behalf and learned that I had been ordered deported in January
      2010.”


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                                        No. 15-60116
      4. “I never received notice that I was in any kind of trouble with
      the immigration authorities, or that I was supposed to appear
      before the immigration judge.”

Torres Hernandez also submitted a change of address form with his motion to
reopen. He stated that his “old address” was “547 Beaver Bend, Houston,
Texas,” and provided a new address of “1411 Euel, Houston, Texas 77009.” The
IJ denied the motion to reopen, stating that “notice of the hearing was provided
and no application for relief is provided.”
      Torres Hernandez appealed to the BIA, claiming that he did not receive
notice of the hearing, he had been under no obligation to provide his address
to the immigration court, and the IJ’s conclusions were cursory. The BIA
observed that the record showed that the NTA was served on Torres
Hernandez by regular mail. The BIA further observed that the notice of
hearing was sent by regular mail two weeks later to the same address, and
there was no indication it was returned. Citing Joshi v. Ashcroft, 1 the BIA
found that the only evidence Torres Hernandez offered to support his absence
from the hearing was his “uncorroborated assertion” that he did not receive
notice. The BIA concluded that this evidence was insufficient to overcome the
presumption of receipt for notice sent by regular mail.
      Addressing the IJ’s statement that Torres Hernandez had not provided
an application for relief with his motion to reopen, the BIA pointed out that
there is no requirement that a motion to reopen seeking rescission of an in
absentia removal order also show eligibility for separate relief from removal.
Nonetheless, because the BIA agreed with the IJ’s determination that Torres
Hernandez presented insufficient evidence to rebut the presumption of receipt




      1   389 F.3d 732, 735 (7th Cir. 2004).
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                                     No. 15-60116
of the NTA and the hearing notice, sent via regular mail, the BIA dismissed
the appeal. Torres Hernandez timely petitioned for review. 2
                                            II.
                                    DISCUSSION
      Torres Hernandez contends that the BIA abused its discretion in
determining that his affidavit stating that he did not receive notice of the
hearing failed to rebut the presumption that he did receive notice.
                                            A.
      This court reviews only the BIA’s decision unless the underlying decision
of the IJ influenced the determination of the BIA. 3 The denial of a motion to
reopen is reviewed under a “highly deferential abuse-of-discretion standard,
regardless of the basis of the alien’s request for relief.” 4 “[T]his court 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.” 5 “The BIA’s factual findings are
reviewed under the substantial-evidence test, meaning that this court may not
overturn the BIA’s factual findings unless the evidence compels a contrary
conclusion.” 6
                                            B.
      A NTA and a notice of removal proceedings should be personally served
on the alien, but may be mailed to the alien or his attorney when personal
service is not practicable. 7 Any alien who fails to appear at a removal
proceeding “shall be ordered removed in abstentia,” provided that the



      2 See 8 U.S.C. § 1252(b)(1).
      3 See Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 348 (5th Cir. 2002).
      4 Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009).
      5 Id.
      6 Id.
      7 See 8 U.S.C. § 1229(a)(1), (2).

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                                      No. 15-60116
government shows by “clear, unequivocal, and convincing evidence” that the
alien is removable and that the he or his attorney, was provided written
notice. 8 The notice requirement “is satisfied if proper notice is provided at the
most recent mailing address provided by the alien.” 9 To rescind the order of
removal and reopen the proceedings after 180 days, Torres Hernandez was
required to demonstrate that he did not receive notice. 10
      In the instant case, the NTA and the hearing notice indicate that the
manner of service was regular mail. The presumption of valid service via
regular mail is weaker than that for service via certified mail. In Maknojiya v.
Gonzales, this court explained that when the immigration court uses certified
mail to accomplish the required service of a hearing notice, “a strong
presumption of effective service arises that may be overcome only by the
affirmative defense of nondelivery or improper delivery by the Postal
Service.” 11 In contrast, 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. 12
      In Maknojiya, the alien insisted that he did not receive notice of the
hearing and petitioned this court for review of the denial of his motion to
reopen. 13 The alien and his attorney conceded that they received notice of the
date and time for which the immigration hearing was originally set, but both
stated in affidavits that they did not receive a second hearing notice that was
served via regular mail, which reset the immigration hearing for an earlier




      8 See 8 U.S.C. § 1229a(b)(5)(A).
      9 Gomez-Palacios, 560 F.3d at 358.
      10 See 8 U.S.C. § 1229a(B)(5)(C)(ii).
      11 432 F.3d 588, 589 (5th Cir. 2005).
      12 Id. at 589–90.
      13 Id. at 588.

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                                       No. 15-60116
date. 14 When the alien arrived for the hearing on the original date, he was
advised that a removal order had been entered against him in abstentia. 15 This
court observed, inter alia, that although the IJ characterized the affidavits as
self-serving, the IJ did not find any evidentiary flaw in them. 16 This court
further noted the lack of evidence that the alien was attempting to avoid
immigration proceedings. 17 Observing that, in the case of failed delivery by
mail, the only proof is the alien’s statement that he or she did not receive
notice, this court granted the alien’s petition for review and remanded the
matter to the BIA. 18
       In Settim v. Gonzales, an unpublished opinion, this court categorized
Maknojiya as standing for the rule that “[w]here the correspondence is sent by
regular mail, and where there is no other evidence that the petitioner was
attempting to avoid the proceedings, the petitioner’s statement that he or she
did not receive the correspondence is sufficient evidence that mail delivery
failed.” 19 In Settim, this court held that the BIA abused its discretion when it
denied a motion to reopen on the basis of lack of notice after the petitioner
submitted affidavits stating that she did not receive the notice of hearing and
the record contained no evidence indicating that she was attempting to evade
the proceedings. 20 None of this is to say, however, that the BIA should not


       14 Id. at 589–90.
       15 Id.
       16 Id. at 590.
       17 Id.
       18 Id. In Maknojiya, we relied on the Eight Circuit’s opinion in Ghounem v. Ashcroft,

which explained that “[i]n the common case of failed delivery through regular mail, [other]
types of evidence do not exist.” 378 F.3d at 744. For that reason, the court in Ghounem
rejected a standard under which a “bald and unsupported denial of receipt of certified mail
notices is not sufficient to support a motion to reopen” for lack of notice. Id. (quoting Matter
of Grijalva, 21 I&N Dec. 27, 37 (B.I.A. 1995)). That standard “would leave respondents
virtually without recourse to rebut the presumption of effective delivery.” Id.
       19 171 F. App’x 436, 437 (5th Cir. 2006) (Clement, J.) (unpublished) (citing Maknojiya,

432 F.3d at 590).
       20 Id. at 437–38.

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weigh the credibility of an affidavit in determining whether an alien has
rebutted the presumption of notice. To the contrary, it should. 21
       Here, as in Maknojiya, Torres Hernandez submitted an affidavit stating
that he did not receive notice of the hearing. In relevant part, his affidavit
states:
       2. “Approximately one year ago, ICE officers went to look for me at
       my sister’s house. That is how I found out that I had immigration
       problems.”

       3. “I went to the offices of Manuel Solis, who filed a FOIA on my
       behalf and learned that I had been ordered deported in January
       2010.”

       4. “I never received notice that I was in any kind of trouble with
       the immigration authorities, or that I was supposed to appear
       before the immigration judge.”

The BIA concluded that “[t]he only evidence presented to explain the
respondent’s absence is the respondent’s uncorroborated assertion: ‘I never
received notice that I was in any kind of trouble with the immigration
authorities, or that I was supposed to appear before the immigration judge.’”
It noted further that Torres Hernandez “literally provides no more explanation
or information for [his] failure to appear at the . . . hearing.” The BIA also noted
that (1) the NTA was served by regular mail and Torres Hernandez did not
expressly deny receiving that notice; and (2) the notice of hearing was sent two




       21  See Rodriguez-Reyes v. Holder, 565 F. App’x 310, 310–11 (5th Cir. 2014)
(unpublished) (“Rodriguez-Reyes also asserts that the IJ and BIA erred by failing to accept
the truth of the affidavit she presented in support of her motion to reopen. We do not require
immigration courts to assume the credibility of such an affidavit.”); Barahona-Cardona v.
Holder, 417 F. App’x 397, 399 (5th Cir. 2011) (recognizing that “the IJ was not required to
find that Barahona’s affidavit was credible”); Guerrero-Arias v. Holder, 423 F. App’x 358, 360
(5th Cir. 2011) (unpublished) (“The BIA was not required to find either Guerrero’s affidavit
or the affidavit of the aunt to be credible.”).
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                                       No. 15-60116
weeks later by regular mail to the same address as the NTA and there is no
indication that it was returned.
       Although the BIA properly considered the credibility of Torres
Hernandez’s claim that he did not receive notice, it failed to address other
record evidence that might have weighed in favor of his claim that he did not
receive notice. This is contrary to the BIA’s own precedent, which instructs
that “all relevant evidence submitted to overcome the weaker presumption of
delivery must be considered.” 22
       The BIA completely ignored Torres Hernandez’s explanation of how he
learned about the in abstentia deportation order. In his affidavit, he explained
that after ICE officers looked for him at his sister’s house in 2013, he hired an
attorney to file a Freedom of Information Act (“FOIA”) request which revealed
that the in abstentia deportation order had issued back in January 2010. In
Santana Gonzalez v. Attorney General of U.S., the Third Circuit recognized
that an alien’s efforts to hire counsel to “inquire as to her immigration status”
and to file a FOIA request constitute circumstantial evidence that might suffice
to rebut the presumption of notice. 23 Here, the BIA should have considered
Torres Hernandez’s complete explanation as to how and when he learned of his
immigration troubles and the actions he took to resolve them. Torres
Hernandez’s hiring an attorney to file a FOIA request so as to learn about his
immigration status provides circumstantial evidence that Torres Hernandez
did not receive the 2009 notice of hearing. The BIA’s categorization of Torres
Hernandez’s statement that he did not receive notice as the only evidence
confirms that it did not consider this evidence.



       22Matter of M-R-A-, 24 I.&N. Dec. 665, 674 (B.I.A. 2008).
       23506 F.3d 274, 281 (3d Cir. 2007) (“Petitioner also took affirmative action to have her
counsel inquire as to her immigration status. It was only after her counsel investigated her
status that she learned that an in abstentia order had been issued removing her.”).
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                                     No. 15-60116
      The BIA likewise failed to acknowledge that Torres Hernandez had filed
a change of address form with his motion to reopen. Although the Respondent
relies on this change of address form as evidence that Torres Hernandez lived
at the address to which the NTA and notice of hearing were directed, it is also
relevant for another purpose. In Lopes v. Gonzales, the Second Circuit
recognized that an alien’s prompt provision of a change of address form is some
evidence that the alien “is not an absconder,” which weighed in favor of the
alien’s claim of non-receipt of notice. 24 Here, as in Lopes, Torres Hernandez
filed a change of address form after learning of the in abstentia deportation
order. This evidence also weighs in favor of Torres Hernandez’s claim that he
did not receive the original notice. Yet the BIA failed to consider this evidence
for any purpose.
      Finally, as in Maknojiya, “the record does not indicate that [Torres
Hernandez] was attempting to avoid the immigration proceedings.” 25 Nor did
the BIA recognize any evidentiary flaw in Torres Hernadez’s affidavit. 26
      The BIA did recognize that Torres Hernandez does not claim that he did
not receive notice of the NTA, and then noted that the notice of hearing was
sent to the same address and “there is no indication that it was returned.”
Although the lack of return provides some evidence weighing in favor of
delivery, this court in Maknojiya confronted similar facts—the petitioner and
his attorney had received the notice of hearing but claimed that neither had
received the notice of change in the hearing to an earlier date—and still found




      24 468 F.3d 81, 85–86 (2d Cir. 2006) (“[B]y promptly providing the INS with a change
of address after he posted bond, he has done something to illustrate—again, at least
arguably—that he is not an absconder.”).
      25 432 F.3d at 590.
      26 See id.

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that the IJ had abused its discretion. 27 And, regardless, this explanation does
not cure the BIA’s failure to consider all of the relevant evidence.
      Because the BIA concluded that Torres Hernandez failed to rebut the
presumption of notice without considering all relevant evidence, it abused its
discretion in denying Torres Hernandez’s motion to reopen. 28 We express no
opinion whether Torres Hernandez has rebutted the presumption of notice;
instead, we remand to the BIA so that it may consider all relevant evidence
offered by Torres Hernandez to rebut the presumption of notice.
                                              III.
                                      CONCLUSION
      We grant the petition for review, vacate the decision of the BIA, and
remand for further consideration consistent with this opinion.




      27   432 F.3d at 589.
      28   See Diaz-Resendez v. I.N.S., 960 F.2d 493, 495 (5th Cir. 1992).
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