     Case: 10-60047 Document: 00511353586 Page: 1 Date Filed: 01/18/2011




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

                                                 FILED
                                                                          January 18, 2011
                                     No. 10-60047
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

RICARDO GALO-MARTINEZ,

                                                   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 938 501


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Ricardo Galo-Martinez, a native and citizen of Honduras, petitions this
court for review of the Board of Immigration Appeals’ (BIA) decision dismissing
his appeal of the Immigration Judge’s (IJ) denial of the motion to reopen his in
absentia deportation proceedings. Relying on In re Grijalva, 21 I. & N. Dec. 27
(BIA 1995), Galo-Martinez contends that the BIA erred in holding that he was
provided sufficient notice of the deportation hearing because there was no
evidence that the hearing notice was sent by certified mail. In the alternative,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-60047

he argues that even if the hearing notice was properly served, he presented
sufficient evidence to rebut the presumption of delivery by regular mail.
      This court reviews the denial of a motion to reopen “under a highly
deferential abuse-of-discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 303
(5th Cir. 2005).   The BIA’s decision must be upheld as 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.” Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir.
2006) (internal quotation marks and citation omitted). While questions of law
are reviewed de novo, this court “accord[s] deference to the BIA’s interpretation
of immigration statutes unless the record reveals compelling evidence that the
BIA’s interpretation is incorrect.” Mikhael v. INS, 115 F.3d 299, 302 (5th Cir.
1997). 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. Chun v. INS, 40 F.3d 76, 78 (5th
Cir. 1994).   This court reviews the BIA’s decision and will consider the
underlying decision of the IJ only if it influenced the determination of the BIA.
Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 348 (5th Cir. 2002).
      Galo-Martinez’s reliance on Grijalva is misplaced.        Galo-Martinez’s
hearing notice was served prior to June 13, 1992. Thus, as the BIA correctly
noted, his in absentia deportation proceedings were conducted pursuant to
former § 242(b) of the Immigration and Nationality Act, as codified in former 8
U.S.C. § 1252(b). See Williams-Igwonobe v. Gonzales, 437 F.3d 453, 455 & n.1
(5th Cir. 2006). Under former § 1252(b), a deportation hearing could be held in
absentia if the alien was given a reasonable opportunity to be present and
without reasonable cause failed or refused to attend the proceedings. § 1252(b)
(1990). Section 1252(b)(1) required that the alien “be given notice, reasonable
under all the circumstances, of the nature of the charges against him and of the
time and place at which the proceedings will be held.” § 1252(b)(1) (1990). The

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applicable regulations provided that the “Office of the Immigration Judge [was]
responsible for providing notice of the time, place, and date of the hearing to the
government and respondent/applicant.” 8 C.F.R. § 3.17 (1990). Notice of the
hearing could be accomplished by routine service, that is, “mailing a copy by
ordinary mail addressed to a person at his last known address.”          8 C.F.R.
§ 103.5a(a)(1) (1990).
      Galo-Martinez acknowledges that he was personally served with the Order
to Show Cause (OSC) on April 2, 1990. The OSC provided that Galo-Martinez
was required to appear before the IJ at a date and time to be set later and
advised him that if he failed to attend the hearing, a determination could be
made in his absence. The OSC also contained the address Galo-Martinez had
provided immigration officials upon his apprehension. Eight days later, the
immigration court issued a written notice indicating that a master calendar
hearing had been scheduled for May 3, 1990. The hearing notice was sent by
regular mail to the address on the OSC. The record does not indicate that the
notice was returned to the court as undeliverable. Therefore, the BIA did not err
in holding that Galo-Martinez was properly served with the hearing notice. See
Matter of Munoz-Santos, 20 I. & N. Dec. 205, 206 (BIA 1990).
      The BIA’s determination that Galo-Martinez failed to overcome the
presumption of delivery is also supported by substantial evidence. Although
Galo-Martinez filed an affidavit asserting that he did not receive the hearing
notice, he did not submit an affidavit from any individuals who were
knowledgeable about the facts relevant to whether notice was received. Galo-
Martinez did not initiate deportation proceedings nor did he have any
applications for relief pending at the time of his failure to appear. Thus, there
was no indication that he had an incentive to appear for the hearing. Further,
although Galo-Martinez acknowledged that he received the in absentia
deportation order at the same address in May 1990, he did not file a motion to
reopen until 19 years later. Galo-Martinez’s alleged failure to receive actual

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                                No. 10-60047

notice of the deportation hearing was due to circumstances of his own making.
Therefore, he has not shown that the BIA abused its discretion when it
dismissed his appeal of the IJ’s denial of the motion to reopen his in absentia
deportation proceedings. Accordingly, Galo-Martinez’s petition for review is
DENIED.




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