                    Case: 12-10996            Date Filed: 09/26/2012   Page: 1 of 5

                                                                           [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-10996
                                        Non-Argument Calendar
                                      ________________________

                                           Agency No. A091-418-058




SHERON PANCHETA FOSTER,

llllllllllllllllllllllllllllllllllllllll                                                Petitioner,

                                                    versus

U.S. ATTORNEY GENERAL,

lllllllllllllllllllllllllllllllllllllll                                               lRespondent.

                                     ________________________

                               Petition for Review of a Decision of the
                                    Board of Immigration Appeals
                                    ________________________

                                             (September 26, 2012)

Before HULL, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
              Case: 12-10996    Date Filed: 09/26/2012   Page: 2 of 5

      Sheron Foster seeks review of the Board of Immigration Appeal’s (“BIA”)

dismissal of her appeal from the Immigration Judge’s (“IJ”) denial of her motion

to reopen her in absentia order of removal. Foster argues that the IJ and BIA erred

in denying her motion to reopen because she did not receive the Notice to Appear

(“NTA”).

      We review the BIA’s denial of a motion to reopen for an abuse of

discretion. Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006). The BIA’s

discretion is quite broad, and review “is limited to determining whether there has

been an exercise of administrative discretion and whether the matter of exercise

has been arbitrary or capricious.” Id. The BIA’s factual findings are considered

“conclusive unless a reasonable factfinder would be compelled to conclude to the

contrary.” Lonyem v. U.S Att’y Gen., 352 F.3d 1338, 1340 (11th Cir. 2003). In

the context of a motion to reopen, whether an alien received sufficient notice of

his removal hearing is a finding of fact. See Contreras-Rodriguez v. U.S. Att’y

Gen., 462 F.3d 1314, 1317 (11th Cir. 2006) (granting petition for review and

remanding for the BIA to consider in the first instance whether petitioner received

a sufficient notice of hearing before being removed in absentia).

      Any alien who does not attend a proceeding after written notice has been

provided is subject to removal in absentia if the government establishes by “clear,

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unequivocal, and convincing evidence” that it gave written notice and that the

alien was removable. INA § 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A). “[A]

mailing to the last known address is sufficient to satisfy the [government’s] duty to

provide an alien with notice of a deportation proceeding.” United States v. Zelaya,

293 F.3d 1294, 1298 (11th Cir. 2002).

      An alien may seek rescission of an in absentia removal order by filing a

motion to reopen at any time if the alien demonstrates that he did not receive

proper notice of the removal proceedings or that he was in federal or state custody

at the time of the proceedings and the failure to appear was not his fault. INA

§ 240(b)(5)(C)(ii), 8 U.S.C. § 1229a(b)(5)(C)(ii). The BIA presumes receipt of a

notice of hearing sent by regular mail if “the notice was properly addressed and

mailed according to normal office procedures.” Matter of M-R-A-, 24 I. & N. Dec.

at 673. However, such presumption is weaker than when the notice is sent by

certified mail. Id. In evaluating whether an alien has rebutted the presumption of

receipt by mail, the BIA is to consider all relevant evidence, and, a number of

factors are relevant, including:

      (1) the respondent’s affidavit; (2) affidavits from family members or
      other individuals who are knowledgeable about the facts relevant to
      whether notice was received; (3) the respondent’s actions upon
      learning of the in absentia order, and whether due diligence was
      exercised in seeking to redress the situation; (4) any prior affirmative

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      application for relief, indicating that the respondent had an incentive
      to appear; (5) any prior application for relief filed with the
      Immigration Court or any prima facie evidence in the record or the
      respondent’s motion of statutory eligibility for relief, indicating that
      the respondent had an incentive to appear; (6) the respondent’s
      previous attendance at Immigration Court hearings, if applicable; and
      (7) any other circumstances or evidence indicating possible
      nonreceipt of notice.

Id. at 673-74.

      Here, the BIA did not err in concluding that Foster was provided proper

notice of her removal proceedings. The BIA properly applied the weaker

presumption of delivery. See Matter of M-R-A-, 24 I. & N. Dec. at 673. The BIA

noted that, in her statement, Foster admitted that the NTA was mailed to her

correct address, but she asserted that she had not received it. The BIA determined

that her statement and the other evidence submitted was insufficient to overcome

the presumption of delivery because none of the evidence provided an explanation

as to why the notice was not received. The BIA also determined that Foster did

not exercise due diligence despite her claims that she contacted USCIS because

she waited over nine years to file her motion to reopen and it noted that her

criminal history gave her an incentive not to appear. There is nothing in the record

that compelled the BIA to conclude that Foster did not have sufficient notice of

her removal proceedings. See Lonyem, 352 F.3d at 1340. Accordingly, the IJ and



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BIA did not abuse their discretion in denying Foster’s motion to reopen.

      PETITION DENIED.




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