     Case: 17-60792    Document: 00514717327   Page: 1   Date Filed: 11/08/2018




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

                                                                FILED
                                                            November 8, 2018
                                No. 17-60792
                              Summary Calendar               Lyle W. Cayce
                                                                  Clerk


ROBERTO ENRIQUE MAURICIO-BENITEZ, also known as Roberto
Sanchez-Fajardo,

              Petitioner,

v.

JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,

              Respondent.




                         Petition for Review of an Order
                      of the Board of Immigration Appeals
                              BIA No. A098 121 741


Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
      Petitioner Roberto Enrique Mauricio-Benitez, a native and citizen of El
Salvador, seeks review of a final order of removal issued by the Board of
Immigration Appeals (BIA). He contends that the BIA erred in refusing to
reopen his removal proceedings because he never received notice of his removal
hearing. Because Mauricio-Benitez failed to provide the immigration court
with his correct mailing address, and because he failed to rebut the weak
presumption of delivery of his notice of hearing (NOH), we DENY his petition
for review.
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                                 No. 17-60792
                                       I.
      On or around June 13, 2004, Mauricio-Benitez entered the United States
near Roma, Texas, without being admitted or paroled. The same day, the
Department of Homeland Security (DHS) personally served him with a Notice
to Appear (NTA) charging him with being removable under 8 U.S.C.
§ 1182(a)(6)(A)(i). The NTA ordered Mauricio-Benitez to appear at a removal
hearing before an immigration judge (IJ) at a date and time to be set and noted
the following: “If you fail to attend the hearing . . . a removal order may be
made by the [IJ] in your absence[.]” Mauricio-Benitez acknowledged on the
NTA that he had received oral notice in Spanish of the consequences of failing
to appear.
      The NTA also contained instructions regarding Mauricio-Benitez’s
mailing address. It stated that he was required to provide the DHS with his
address in writing and warned him to “notify the Immigration Court
immediately” if he changed his address because “[n]otices of hearing [would]
be mailed to this address.” In addition, it notified Mauricio-Benitez that if he
did not provide an address at which he could be reached during his removal
proceedings, he would not be entitled to receive written notice of his hearing.
The mailing address listed on the NTA was “4010 West Belford Apt. 705,”
whereas Mauricio-Benitez claims that his correct address at the time was
“4010 West Belfort Apt. 705.” According to Mauricio-Benitez, he provided the
correct address, but an immigration officer introduced the spelling error when
preparing the NTA. There is no indication in the record that he corrected the
address when he received the NTA.
      The following month, the DHS sent a NOH to Mauricio-Benitez at the
West Belford address via regular mail. The NOH informed Mauricio-Benitez
that his removal hearing had been scheduled for September 21, 2004, and
again warned him of the consequences of failing to appear. Mauricio-Benitez
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                                 No. 17-60792
did not attend the hearing, and the IJ entered an in absentia order for his
removal to El Salvador.
      Almost thirteen years later, in June 2017, Mauricio-Benitez filed a
motion to reopen his removal proceedings and rescind the in absentia removal
order. He alleged that he had never received notice of his removal hearing,
and, as a result, he did not find out about the order until his attorney filed a
Freedom of Information Act (FOIA) request in January 2017.               He also
contended that he first learned of the spelling error in the mailing address on
his NTA through the FOIA request.
      The IJ denied Mauricio-Benitez’s motion.         She first observed that
Mauricio-Benitez “did not provide the Court with an address change, as
required by the regulations,” to correct the NTA or when he moved from the
address listed on the NTA six months later. Thus, the IJ found that the
immigration court was only required to send the NOH to the last mailing
address it had on file—the West Belford address.          Accordingly, Mauricio-
Benitez had received proper notice of his removal hearing under 8 U.S.C.
§ 1229(a)(2).
      Mauricio-Benitez appealed the IJ’s decision to the BIA, again arguing
lack of notice of the removal hearing. The BIA first observed that Mauricio-
Benitez’s NOH had been mailed to the address listed on the NTA and that the
NOH had not been returned as undeliverable. It then dismissed the appeal on
two alternative grounds: (1) Mauricio-Benitez had not provided sufficient
evidence to rebut the presumption of delivery of the NOH; and (2) Mauricio-
Benitez was “not entitled to actual notice of his hearing” because he had failed
to correct the mistake in the address on the NTA with the immigration court.
Mauricio-Benitez timely filed a petition for review.




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                                 No. 17-60792
                                       II.
      Motions to reopen removal proceedings are disfavored, Altamirano-
Lopez v. Gonzales, 435 F.3d 547, 549 (5th Cir. 2006), and we review BIA denials
of these motions under a “highly deferential abuse-of-discretion standard.”
Hernandez-Castillo v. Sessions, 875 F.3d 199, 203 (5th Cir. 2017). We may
only overturn a BIA decision if it is “capricious, without foundation in the
evidence, or otherwise so irrational that it is arbitrary rather than the result
of any perceptible rational approach[.]” Id. at 203–04 (quoting Gomez-Palacios
v. Holder, 560 F.3d 354, 358 (5th Cir. 2009)). Under the substantial-evidence
test, we may only overturn the BIA’s findings of fact if the evidence compels a
contrary conclusion. Gomez-Palacios, 560 F.3d at 358. We review questions of
law de novo. Id. We will focus our review on the BIA’s order, as we may only
evaluate the IJ’s underlying decision if it influenced the BIA’s determination.
Hernandez-Castillo, 875 F.3d at 204.
                                       III.
      Mauricio-Benitez advances two arguments in his petition for review:
(1) the BIA erred in finding that he was not entitled to actual notice of his
removal hearing; and (2) the BIA’s conclusion regarding the presumption of
delivery of his NOH was contrary to this court’s and the BIA’s prior decisions.
We will address each of his arguments in turn.
                                       A.
      Under 8 U.S.C. § 1229(a)(1), an alien who is subject to removal
proceedings is entitled to written notice of “[t]he time and place at which the
proceedings will be held.” 8 U.S.C. § 1229(a)(1)(G)(i). A written notice is
deemed sufficient if the government “provide[s it] at the most recent address
provided” to the immigration court by the alien. Id. § 1229a(b)(5)(A). However,
if the alien fails to provide a mailing address in accordance with the statutory
requirements, he is not entitled to written notice of his removal hearing. Id.
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§ 1229a(5)(B). The alien must also be informed of the consequences of failing
to appear after receiving notice, id. § 1229(a)(1)(G)(ii), including that the
immigration judge may enter an in absentia order of removal against him. Id.
§ 1229a(b)(5)(A). An in absentia removal order entered without proper notice
to the alien may be rescinded at any time upon a motion to reopen, and it is
the alien’s burden to demonstrate that he did not receive notice in accordance
with § 1229(a). Id. § 1229a(b)(5)(C)(ii).
      In concluding that Mauricio-Benitez was not entitled to actual notice of
his removal hearing, the BIA observed that he had been personally served with
a NTA emphasizing the significance of the mailing address requirements, but
he still took no action to inform the immigration court about the spelling error.
Mauricio-Benitez counters that the NTA and relevant regulations only
required him to notify the immigration court of a change in address, not a
correction to the address already on file. He further insists that even if he had
such a duty to correct his address, he “had no reason to believe” the address on
file was incorrect until he filed his FOIA request in 2017. He argues this even
though the NTA itself, which he received in person, spelled the address
incorrectly.
      Our decision in Gomez-Palacios forecloses Mauricio-Benitez’s argument.
See 560 F.3d 354. In that case, a NTA was personally served on the alien; the
NTA detailed the alien’s obligations regarding his mailing address and the
consequences of failing to appear at his removal hearing; and a NOH was
mailed to the address provided by the alien on the NTA. Id. at 356–57.
However, because the alien had relocated without updating his mailing
address with the immigration court, he did not receive the NOH, and he was
ordered removed in absentia when he failed to appear. Id. at 357. More than
four years later, the alien moved to reopen the removal proceedings on the
basis of lack of notice. Id.
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                                      No. 17-60792
       Upholding the BIA’s dismissal of the alien’s appeal, we concluded that
“an alien’s failure to receive actual notice of a removal hearing due to his
neglect of his obligation to keep the immigration court apprised of his current
mailing address does not mean that the alien ‘did not receive notice’ under
§ 1229a(b)(5)(C)(ii).” Id. at 360–61. Thus, because the lack of notice was a
result of the alien’s failure to update his mailing address with the immigration
court, his removal order would not be rescinded on that basis. Id. at 361.
       In several unpublished cases, we have extended the rule in Gomez-
Palacios to cases where the alien did not fail to inform the immigration court
of a change in address, but instead failed to correct an error in the address
listed on the NTA. See Mejia-Urbina v. Sessions, 712 F. App’x 469, 469–70 (5th
Cir. 2018) (denying petition for review when the record contained no evidence
that the alien had attempted to notify the immigration court that the address
on his NTA was incorrect and asserted only that “an immigration officer wrote
[his] address incorrectly”); Osorio-Hernandez v. Lynch, 602 F. App’x 194, 194
(5th Cir. 2015) (“[I]f the alien moves or discovers that an incorrect address has
been provided, he has an obligation to provide the immigration court with his
current address information.”). We do so again today. As we recognized in
Mejia-Urbina and Osorio-Hernandez, an alien’s statutory obligation to keep
the immigration court apprised of his current mailing address includes an
obligation to correct any errors in that address listed on the NTA. Failure to
receive notice of a removal hearing as a result of such an error is not grounds
to reopen a removal proceeding or rescind an in absentia removal order. 1



       1 The Supreme Court’s recent decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018),
does not impact this conclusion. As the Supreme Court emphasized, “[t]he narrow question
in [that] case” was whether a NTA that does not specify the time or place of the removal
hearing triggers the “stop-time rule” for purposes of a cancellation of removal. Id. at 2109–
10; see also id. at 2113 (“[T]he dispositive question in this case is much narrower[.]”). But
cancellation and reopening are two entirely different proceedings under immigration law
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                                       No. 17-60792
       Here, Mauricio-Benitez was personally served with a NTA listing a
mailing address that he contends was misspelled. Thus, he had notice of the
error in his address upon receipt of the NTA on June 13, 2004—more than a
month before the NOH was mailed to the misspelled address on July 21, 2004.
The NTA warned Mauricio-Benitez of the importance of maintaining an
accurate address with the immigration court, the consequences of failing to
appear at his removal hearing, and that he would not be entitled to receive
notice of his hearing if he did not provide an address at which he could be
reached. Regardless of how the error in his address was introduced, Mauricio-
Benitez had an obligation to correct that error with the immigration court. He
failed to do so, and as a result he was not entitled to actual notice of his removal
hearing.     The BIA’s conclusion on this point was not wrong, much less
“capricious” or “without foundation in the evidence,” so we must leave it
undisturbed.




with different standards of review. Compare Tula-Rubio v. Lynch, 787 F.3d 288, 290–91 (5th
Cir. 2015), with Hernandez-Castillo, 875 F.3d at 203–04.
        Cancellation is a form of discretionary relief that an immigration court may award to
aliens “who are subject to removal proceedings and have accrued 10 years of continuous
physical presence in the United States[.]” Id. at 2109. An alien’s period of continuous
physical presence for purposes of cancellation ends when the alien is served a NTA that fully
complies with the statutory requirements. Id. The filing of the NTA, in turn, initiates
removal proceedings against the alien, during which the alien may request cancellation. See
8 C.F.R. § 1003.14(a); id. § 1003.13; 8 U.S.C. § 1229b(b). In contrast, it is only after these
proceedings have concluded—which in some cases may be by the IJ’s issuance of an in
absentia removal order—that an alien may file a motion to reopen the proceedings on one of
the statutory grounds. See 8 U.S.C. § 1229a(b)(5)(A); id. § 1229a(b)(5)(C); id. § 1229a(c)(7).
        Because the issues in this case pertain only to reopening, Pereira’s rule regarding
cancellation is inapplicable. See, e.g., Ramat v. Nielsen, 317 F. Supp. 3d 1111, 1116–17 (S.D.
Cal. 2018) (declining to read Pereira as applying more broadly than in stop-time rule
cancellation cases); United States v. Ibarra-Rodriguez, No. CR-18-190-M, 2018 WL 4608503,
at *3 (W.D. Okla. Sept. 25, 2018) (finding Pereira distinguishable because “the ‘stop-time rule’
[was] not at issue” in the case).
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                                        No. 17-60792
                                               B.
       Even if Mauricio-Benitez had been entitled to actual notice of his
removal hearing, we agree with the BIA’s determination that he has not
presented sufficient evidence to rebut the presumption that the NOH was
properly delivered. 2
       On a motion to reopen for lack of notice, “the focus of the rescission
inquiry . . . is on the actual receipt of the required notice and not whether the
notice was properly mailed.” Gomez-Palacios, 560 F.3d at 360. To assist in
this inquiry, when a NOH is served via certified mail, a strong presumption of
effective service applies that may only be rebutted by the affirmative defense
of nondelivery. Hernandez v. Lynch, 825 F.3d 266, 269 (5th Cir. 2016). If the
NOH is instead served by regular mail, we still apply a presumption of effective
delivery, but it is somewhat weaker than the certified-mail presumption. Id.;
see also In re M-R-A-, 24 I. & N. Dec. 665, 672–73 (B.I.A. 2008) (noting that
there is “slight” presumption of receipt of regular mail). In In re M-R-A-, the
BIA set out a non-exhaustive list of factors courts may consider in determining
whether this weaker presumption was rebutted, including “the [alien’s]
affidavit;” “the [alien’s] actions upon learning of the in absentia order, and
whether due diligence was exercised in seeking to redress the situation;” and
“any other circumstances or evidence indicating possible nonreceipt of notice.”
24 I. & N. Dec. at 674. The BIA emphasized the discretionary nature of the
inquiry, stating that courts are not “obliged to grant a motion [to reopen] even
if every type of evidence is submitted.” Id.
       The BIA’s conclusion on this issue focused on the absence of evidence in
the record to prove that Mauricio-Benitez actually resided at the West Belfort


       2This alternative holding is not dicta. In this circuit, “alternative holdings are binding
precedent and not obiter dicta.” Whitaker v. Collier, 862 F.3d 490, 496 n.14 (5th Cir. 2017)
(quoting United States v. Bueno, 585 F.3d 847, 850 n.3 (5th Cir. 2009)).
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address when the NOH was mailed; that the immigration officers did in fact
misspell his address; that a West Belford address identical to the claimed West
Belfort address existed; or that the post office would not have delivered the
NOH to West Belfort despite the error. Emphasizing that neither the NOH
nor the in absentia order was returned as undeliverable, the BIA found that
the presumption of delivery of the NOH was not rebutted.
      Mauricio-Benitez insists that the BIA’s analysis misapplied our decision
in Maknojiya v. Gonzales, 432 F.3d 588 (5th Cir. 2005), and the BIA’s own
precedent in In re M-R-A-, 24 I. & N. Dec. 665. With respect to Maknojiya,
Mauricio-Benitez focuses on the following rule, summarized in Hernandez:
“[W]hen 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, 825 F.3d at 269 (citing
Maknojiya, 432 F.3d at 589–90). He argues that because he has submitted an
affidavit stating that he did not receive the NOH, and because the BIA did not
find an evidentiary flaw in the affidavit itself, he has rebutted the presumption
of delivery on this basis alone. Mauricio-Benitez also contends that the BIA
failed to consider his affidavit or his “due diligence after learning of his removal
order” as required by In re M-R-A- and instead relied on factors not set out in
In re M-R-A- such as his failure to corroborate his claims about living at the
West Belfort address. We disagree with both arguments.
      Beginning with Maknojiya, Mauricio-Benitez fails to acknowledge that
the court there relied not only upon Maknojiya’s affidavit, but also on its
finding that “the record [did] not indicate that Maknojiya was attempting to
avoid the immigration proceedings” in granting the petition for review. 432
F.3d at 589–90. Similarly, in Hernandez, even though the court found that the
alien had submitted an affidavit without evidentiary flaw attesting to his
nonreceipt of the NOH, the court considered other factors, including the alien’s
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                                  No. 17-60792
due diligence upon learning of the in absentia order, and, importantly, the
credibility of the statements in the alien’s affidavit. 825 F.3d at 270–71. Thus,
the BIA did not err in concluding that the presumption of delivery was not
rebutted by Mauricio-Benitez’s affidavit alone.
      In addition, the BIA’s analysis was consistent with its own decision in In
re M-R-A-, which noted that courts “may consider a variety of factors”—“not
limited to” those listed—to determine whether an alien has rebutted the
presumption of delivery.       24 I. & N. Dec. at 674.       The BIA considered
permissible factors such as the fact that the NOH was not returned
undelivered, see Hernandez, 825 F.3d at 270–71 (discussing this factor), and
the credibility of the statements in Mauricio-Benitez’s affidavit. See id. at 270
(“None of this is to say . . . that the BIA should not weigh the credibility of an
affidavit in determining whether an alien has rebutted the presumption of
notice. . . . [I]t should.”). In fact, the BIA’s analysis focused on the credibility
of the affidavit—whether, given the lack of evidence in the record corroborating
the West Belfort error, the statements in the affidavit were sufficient to rebut
the presumption of delivery.
      Finally, the BIA did not err in refusing to permit reopening despite the
fact that Mauricio-Benitez sought counsel and filed his motion soon after
discovering the in absentia order through a FOIA request. While the BIA
granted the motion to reopen in In re M-R-A- in part on this basis, the alien
there filed his motion less than a month after his failure to appear at his
removal hearing. 24 I. & N. Dec. at 666; see also Hernandez, 825 F.3d at 267
(NTA served via regular mail and motion to reopen filed within three years).
In contrast, Mauricio-Benitez—despite having been personally served with a
NTA informing him that he would receive a notice setting a hearing date and
time—made no effort to correct his NTA, update his mailing address with the
court when he moved six months after receiving the NTA, or otherwise follow
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                                No. 17-60792
up on his immigration status for thirteen years. See Sosa-Perdomo v. Lynch,
644 F. App’x 320, 321 (5th Cir. 2016) (considering nine-year delay before
moving to reopen as evidence of a lack of diligence); Rahim v. Holder, 552 F.
App’x 358, 360 (5th Cir. 2014) (same with eight-year delay). He cannot now
complain that the BIA failed to grant him relief at the thirteenth hour.
      Accordingly, the BIA’s determination that Mauricio-Benitez failed to
rebut the presumption of delivery of regular mail was not “irrational” or
“arbitrary.” As a result, we must uphold its dismissal of his appeal.
                                      IV.
      For the reasons discussed, Mauricio-Benitez’s petition for review is
DENIED.




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