             Case: 12-15039    Date Filed: 09/19/2013   Page: 1 of 10


                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 12-15039
                            Non-Argument Calendar
                          ________________________

                           Agency No. A079-428-591


VICTORIA MARKOVA,

                                                                         Petitioner,

                                     versus

U.S. ATTORNEY GENERAL,

                                                                        Respondent.

                          ________________________

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

                              (September 19, 2013)

Before CARNES, Chief Judge, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:

      Victoria Markova, a native and citizen of Belarus, seeks review of the Board

of Immigration Appeals’ order affirming the Immigration Judge’s denial of her
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motion to reopen and rescind her in absentia order of removal. The IJ and BIA

both concluded that Markova had failed to present sufficient evidence to overcome

the presumption that she had received written notice of her removal hearing, which

was sent to her address by regular mail.

                                           I.

      Markova was admitted into the United States on February 5, 2001, as a non-

immigrant visitor with authorization to remain in the country until August 4, 2001.

Markova long overstayed her visa and, in February 2007, she filed an application

for adjustment of status to that of lawful permanent resident based on her marriage

to Jerry Sloan, a United States citizen. The United States Department of Homeland

Security (DHS) denied that application on January 15, 2008, and ten months later

— on November 22, 2008 — initiated removal proceedings against Markova by

sending a Notice to Appear via regular mail to her apartment in Bal Harbour,

Florida. Less than two months later, on January 6, 2009, the immigration court

mailed Markova a Notice of Hearing, which was scheduled for March 24, 2009.

After she failed to appear at the scheduled removal hearing, the IJ found Markova

removable for having remained in the country past her authorized date and issued

an order of removal in absentia. A copy of the removal order was then mailed to

Markova’s Bal Harbour address.




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      Nearly two years later, on January 21, 2011, Markova filed a motion to

reopen and rescind her removal order, claiming that she had not received either the

Notice to Appear or the Notice of Hearing even though she lived at the Bal

Harbour address through March 2009. She also alleged that she had only learned

of the removal order after she married her new American husband, Huey Griffin,

on December 28, 2010, and sought to adjust her immigration status in light of that

marriage. Markova submitted a personal affidavit in support of her motion to

reopen, in which she asserted that did not receive the Notice to Appear or Notice of

Hearing at her former address and that “[o]ther mail” sent to that address had been

delivered to the wrong apartments, including an appointment notice related to her

earlier application for adjustment of status.

      The IJ denied the motion to reopen, finding that Markova had failed to

present sufficient evidence to overcome the presumption that properly addressed

notices sent by regular mail have been received. The IJ, while acknowledging

Markova’s affidavit, emphasized that she had not provided any corroborating

evidence of postal delivery problems at her former residence, including proof of

such problems from the United States Postal Service or the building manager of the

apartment complex. The IJ additionally noted that Markova did not have an

incentive to appear at her removal hearing because, at that time, her earlier




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application for adjustment of status had been denied and she had yet to marry her

current husband.

      Markova appealed to the BIA, contending that the IJ improperly found that

she had failed to provide sufficient evidence to overcome the presumption of

receipt that attaches to notices sent by regular mail. Markova, for the first time,

submitted additional affidavits from two of her former neighbors, both of whom

asserted that they had received other tenants’ mail in the past and did not always

receive their own mail, at least not in a timely manner.

      The BIA dismissed the appeal, agreeing with the IJ that Markova had failed

to adequately rebut the presumption that a properly addressed notice sent by way

of regular mail was received. The BIA explicitly considered Markova’s affidavit,

including her assertion of postal delivery problems, but it also noted that the Notice

to Appear and Notice of Hearing were properly mailed to her address, that neither

document had been returned as undeliverable, and that Markova did not appear to

have an incentive to attend her removal hearing given the denial of her application

for adjustment of status based on her earlier marriage. The BIA did not consider

the affidavits from Markova’s former neighbors, explaining that it would not

consider evidence first introduced on appeal.

                                          II.




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       We review the denial of a motion to reopen removal proceedings only for an

abuse of discretion and our review is limited to “determining whether the BIA

exercised its discretion in an arbitrary or capricious manner.” Jiang v. U.S. Att’y

Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). Administrative factual findings,

including whether an alien received notice of her removal hearing, are “conclusive

unless a reasonable factfinder would be compelled to conclude to the contrary.”

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

       An alien who fails to attend a proceeding after written notice has been

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

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

is removable. 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). Once an in absentia order of removal has been issued, an alien may seek to

reopen the proceedings and rescind that order within 180 days by demonstrating

that the failure to appear was due to “exceptional circumstances,” such as a serious

illness or the death of a family member, or at any time by showing that she did not

receive notice of the removal hearing. 1 8 U.S.C. § 1229a(b)(5)(C), (e)(1). Where,


       1
         Throughout her appellate brief, Markova conflates the two distinct bases for seeking
rescission of an in absentia removal order — lack of notice and exceptional circumstances — by
arguing that her alleged lack of notice of the removal hearing was “due to exceptional
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as here, notice is sent by regular mail, the BIA presumes delivery and receipt of

that notice if it was “properly addressed and mailed according to normal office

procedures,” though the presumption is weaker than when notice is sent by

certified mail. Matter of M-R-A-, 24 I. & N. Dec. 665, 673 (BIA 2008). In

evaluating whether an alien has rebutted the presumption of receipt by regular

mail, the BIA and IJ must consider all relevant evidence and “may consider a

variety of factors,” including: (1) affidavits from the alien and “other individuals

who are knowledgeable about the facts relevant to whether notice was received”;

(2) whether the alien exercised due diligence upon learning of the in absentia

removal order; (3) any prior applications for immigration relief that would indicate

an incentive to appear at the removal hearing; (4) the alien’s attendance at earlier

immigration hearings; and (5) any other circumstances indicating possible non-

receipt of notice. Id. at 674.

       Markova, invoking the requirements of 8 U.S.C. § 1229a(b)(5)(A), first

contends that the BIA and IJ erred in finding that she had received notice of her

removal hearing because there was “no clear, unequivocal and convincing

evidence” of such receipt, particularly in light of her own sworn statements.



circumstances, the failure of regular mail to be properly delivered to the correct apartment.” To
the extent that Markova is seeking to independently invoke the “exceptional circumstances”
ground for seeking rescission, which we seriously doubt given the specific nature of her
arguments, we lack jurisdiction to consider the issue because she did not properly raise it before
the BIA. See Amaya-Artunduaga, 463 F.3d 1247, 1250 (11th Cir. 2006).
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Markova’s argument misconstrues the relevance of § 1229a(b)(5)(A) to the

circumstances of this case and improperly attempts to shift the burden of proof to

the government. Once the order of removal was entered based on evidence that

notice was mailed to Markova’s address, the government had no additional

obligation under § 1229a(b)(5)(A) to establish by clear, unequivocal, and

convincing evidence that Markova actually received that notice. See 8 U.S.C. §

1229a(b)(5)(A); Zelaya, 293 F.3d at 1298. Instead, Markova bore the burden of

presenting sufficient evidence to overcome the presumption of receipt that attaches

to properly addressed notices sent by regular mail. See 8 U.S.C. §

1229a(b)(5)(C)(ii) (providing that an in absentia removal order may be rescinded

“if the alien demonstrates that [she] did not receive notice”); Matter of M-R-A-, 24

I. & N. Dec. at 673.

       Markova also contends that her affidavit and those of her former neighbors

were sufficient to demonstrate that she did not receive notice of the removal

hearing, and that the BIA and IJ failed to consider and address those affidavits,

particularly as they relate to postal delivery problems at her former apartment

complex.2 Because Markova first submitted the neighbors’ affidavits on appeal to

the BIA, the IJ had no occasion to consider them and the BIA was entitled to
       2
         Markova also challenges the facial validity of the hearing notice mailed to her former
address, contending that it did not expressly state that it was sent by the Attorney General, as
purportedly required by § 1229a(b)(5)(A). Because Markova did not exhaust her administrative
remedies with respect to that claim by raising it before the BIA, we lack jurisdiction to consider
it. See Amaya-Artunduaga, 463 F.3d at 1250.
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disregard them in evaluating whether she had presented sufficient evidence to

overcome the presumption of receipt. See Matter of Fedorenko, 19 I. & N. Dec.

57, 74 (BIA 1984) (“The Board is an appellate body whose function is to review,

not to create, a record.”); 8 C.F.R. § 1003.1(d)(3)(iv) (providing that a party

seeking to introduce additional evidence to the BIA, which would require further

factfinding, must file a motion to remand the case to the IJ).

      Contrary to Markova’s contentions, the BIA and IJ explicitly considered her

affidavit, including her assertion of past delivery problems with her mail, but found

that her uncorroborated statements were not enough to overcome the presumption

that she had received notice of her removal hearing. The determination that

Markova’s sworn statements, standing alone, were not sufficient to overcome the

presumption of receipt was not arbitrary or capricious. See Joshi v. Ashcroft, 389

F.3d 732, 735 (7th Cir. 2004) (“[A] bare, uncorroborated, self-serving denial of

receipt, even if sworn, is weak evidence.”); Kozak v. Gonzales, 502 F.3d 34, 37

(1st Cir. 2007) (same). That is particularly true given Markova’s assertions

throughout these proceedings that she failed to receive not one, not two, but three

separate immigration documents sent to her apartment by regular mail — the

Notice to Appear, the notice of her removal hearing, and her final order of

removal. Even accepting as true her statement that she had experienced mail

delivery problems at her former apartment, the record simply does not compel a


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finding that the relevant notices, which were sent on different dates, were each

delivered to some other tenant’s apartment.

      The BIA, in further support of its finding, also emphasized that Markova did

not appear to have any incentive to attend the March 2009 removal hearing

because her application for adjustment of status based on her marriage to Jerry

Sloan had already been denied and she had yet to marry her current husband.

Although Markova contends that she had “every reason to appear” at the March

2009 removal hearing, she does not explain why that it is so and there is no

evidence in the record to support her contention.

      Markova suggests that, at the very least, her affidavit was sufficient to entitle

her to an evidentiary hearing for the immigration court to consider the veracity of

her sworn statement that she did not receive notice of the March 2009 removal

hearing. She relies on the Ninth Circuit’s decision in Salta v. I.N.S., 314 F.3d

1076, 1079 (9th Cir. 2002), which held that where an alien “actually initiates a

proceeding to obtain a benefit” and “has no motive to avoid the hearing,” an alien’s

sworn affidavit that she did not receive notice of the hearing entitles her to “an

evidentiary hearing to consider the veracity of her allegations.” The underlying

rationale of the Ninth Circuit’s decision, needless to say, is that an alien who

initiates an immigration proceeding for her own benefit has a strong incentive to

attend any relevant hearings, making it far more likely that a failure to appear was


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actually due to a lack of notice. Markova, however, did not initiate the removal

proceedings against her or stand to benefit from those proceedings, which makes

Salta and its underlying rationale wholly inapplicable to the facts of her case. As

the Seventh Circuit has keenly observed, the intended recipient of a notice of

removal proceedings “has a strong incentive to lie” about the lack of notice and,

unfortunately, “[n]othing is simpler than submitting an affidavit in which one

attests that one didn’t receive a particular piece of mail.” Joshi, 389 F.3d at 735–

36.

      Because Markova has not shown that the BIA and IJ abused their discretion

in denying her motion to reopen and rescind her in absentia order of removal, we

deny her petition for review.

      PETITION DENIED.




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