     Case: 15-60261      Document: 00513525476         Page: 1    Date Filed: 05/27/2016




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

                                    No. 15-60261                           FILED
                                  Summary Calendar                     May 27, 2016
                                                                      Lyle W. Cayce
                                                                           Clerk
MIGUEL ANGEL HERNANDEZ-GONZALEZ,

                                                 Petitioner

v.

LORETTA LYNCH, U. S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A098 937 585


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Miguel Angel Hernandez-Gonzalez, a native and citizen of El Salvador,
failed to appear at his 2006 removal hearing and was ordered deported in
absentia. In 2013, he moved to reopen the proceedings and to rescind the
removal order, asserting that he had never received notice of the hearing date.
The immigration judge (IJ) denied the motion, and the Board of Immigration
Appeals (BIA) dismissed Hernandez-Gonzalez’s ensuing appeal.                             He now


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-60261

petitions for review of the BIA’s decision, arguing, for the first time in any
court, that he received ineffective assistance of counsel in relation to his motion
to reopen and that he is otherwise eligible for relief from removal.
      Because Hernandez-Gonzalez did not address either of those claims to
the BIA, we have no jurisdiction to consider them. See 8 U.S.C. § 1252(d)(1);
Wang v. Ashcroft, 260 F.3d 448, 452-43 (5th Cir. 2001); Mosley v. Cozby, 813
F.2d 659, 660 (5th Cir. 1987). Thus, we dismiss his petition in part for lack of
jurisdiction.
      Preserved for review, however, is his underlying argument that he did
not receive notice of the 2006 removal hearing. See § 1252(d)(1). Because the
BIA adopted the IJ’s factual findings and conclusions in denying the motion to
reopen, we review both decisions, applying a highly deferential abuse-of-
discretion standard. See Barrios-Cantarero v. Holder, 772 F.3d 1019, 1021 (5th
Cir. 2014); Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009). We review the
factual findings for substantial evidence. Wang, 569 F.3d at 536-37.
      If an alien “demonstrates that he did not receive proper notice of the
removal hearing,” the resulting removal order may be rescinded. 8 U.S.C.
§ 1229a(b)(5)(C)(ii); see Gomez-Palacios v. Holder, 560 F.3d 354, 360 (5th Cir.
2009). We apply a presumption that a properly addressed notice sent by
regular mail was received by the alien. See Matter of M-R-A-, 24 I. & N. Dec.
665, 671-73 (BIA 2008). The alien may overcome the presumption of delivery
by presenting “sufficient evidence” that he did not actually receive notice of the
removal hearing. Id. at 673-74. However, a removal order will not be rescinded
for lack of notice if the alien moved to a new address without notifying the
immigration court. Id. at 675; Gomez-Palacios, 560 F.3d at 361.
      The record reflects that following his initial arrest Hernandez-Gonzalez
was personally served with a Notice to Appear, which explicitly admonished



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                                  No. 15-60261

that he must provide the immigration court with an address for service and
notify the court of any change of address. See 8 U.S.C. § 1229(a)(1)(F)(i) & (ii).
He initially provided the court with an address in Santa Ana, California, to
which notice of the removal hearing was mailed. However, he conceded that
he eventually moved without informing the immigration court or providing a
new address, and the record supports his concession.
      Hernandez-Gonzalez offers no evidence disputing the IJ’s factual
findings or rebutting the presumption that notice of the removal hearing was
delivered to the address he provided to the immigration court. Given that, he
fails to show that the IJ’s refusal to reopen the removal proceedings was
“capricious, without foundation in the evidence, or otherwise so irrational that
it is arbitrary rather than the result of any perceptible rational approach.”
Gomez-Palacios, 560 F.3d at 358.        Therefore, the BIA did not abuse its
discretion in dismissing Hernandez-Gonzalez’s appeal. See Barrios-Cantarero,
772 F.3d at 1021.
      The petition for review is DISMISSED IN PART for lack of jurisdiction
and DENIED IN PART.




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