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

                                                 FILED
                                                                         November 12, 2009

                                     No. 08-61072                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



SANG HUI JEON

                                                   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. A29 943 276


Before JONES, Chief Judge, and GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Sang Hui Jeon (“Jeon”) petitions for review of a Board of Immigration
Appeals (“BIA”) order that dismissed her appeal from the denial of a motion to
reopen 1990 deportation proceedings in which a deportation order was entered
against her in absentia. Jeon seeks to reopen the proceedings based upon a lack
of notice of her deportation hearing and her eligibility for adjustment of status,



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                 No. 08-61072

as she is the beneficiary of an I-130 relative visa petition filed by her United
States citizen husband.
      We conclude that the BIA did not abuse its discretion in denying Jeon’s
motion to reopen based upon lack of notice. The petition for review on this
ground is denied. Further, Jeon’s motion to reopen based upon eligibility for
adjustment of status was untimely. Because this court lacks jurisdiction to
review the BIA’s refusal to sua sponte reopen Jeon’s deportation proceedings, we
dismiss the remaining portion of the appeal.
                               I. Background
      Jeon is a native and citizen of South Korea.       On October 20, 1990,
Immigration and Naturalization Service (“INS”) agents arrested Jeon at the
El Paso International Airport because she entered the United States without
inspection. Jeon was personally served with an “Order to Show Cause, Notice
of Hearing, and Warrant for Arrest of Alien” (“OSC”) ordering Jeon to appear for
a hearing before an immigration judge “at a time and date to be set later.” The
OSC listed the address Jeon provided–that of a relative in New Jersey–and
advised Jeon that “[f]ailure to attend the hearing at the time and place
designated hereon may result in a determination being made by the Immigration
Judge in your absence.” Jeon was thereafter released on her own recognizance.
      On November 13, 1990, the Office of the Immigration Judge sent a Notice
of Master Calendar Hearing (“notice”) via ordinary mail to Jeon at the New
Jersey address she provided.      Jeon did not appear at the hearing and a
deportation order was entered against her in absentia. On December 5, 1990,
the Office of the immigration judge also sent a copy of the deportation order via
ordinary mail to Jeon at the New Jersey address. The record indicates that INS


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correspondence sent to the New Jersey address via certified mail on January 31,
1991 was returned undeliverable.
      Jeon alleges that she first learned of the deportation order almost eight
years later, on March 12, 1998, when she and her husband attended an
interview concerning her application for adjustment of status. On August 13,
2007, after nine more years lapsed, Jeon filed a motion to reopen her deportation
proceedings with the immigration judge. Jeon claims that she remained at the
New Jersey address with her relatives for only one week after her release in
El Paso, thereafter moved to New York, and thus never received notice of her
deportation hearing or the deportation order.
                           II. Standard of Review
      Motions to reopen immigration proceedings are disfavored.            INS v.
Doherty, 502 U.S. 314, 323, 112 S. Ct. 719, 724 (1992). Accordingly, this court
reviews the BIA’s denial of a motion to reopen for an abuse of discretion. Zhao
v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). Under this “highly deferential”
standard, we will affirm the BIA’s decision unless it is “‘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.’”
Id. at 304 (quoting Pritchett v. INS, 993 F.2d 80, 83 (5th Cir. 1993)).
                                III. Discussion
A. Lack of Notice
      Because Jeon’s hearing notice was served before June 13, 1992, 8 U.S.C.
§ 1252 provides the applicable administrative procedures.         Section 1252(b)
provides that a deportation hearing may be conducted in absentia if an “alien
has been given a reasonable opportunity to be present” and “without reasonable


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cause fails or refuses to attend . . . .” Section 1252(b)(1) requires that “the alien
shall 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.”
         Jeon argues that the BIA applied a presumption of receipt that does not
arise when, as here, notice is sent by ordinary mail. Per Matter of Grijalva,
21 I&N Dec. 27 (BIA 1995), “a strong presumption of effective service arises”
when notice of a deportation hearing is sent by certified mail and can only be
rebutted by “substantial and probative evidence such as documentary evidence
from the Postal Service, third party affidavits, or other similar evidence.” Id. at
37–38. Jeon asserts that the BIA held her to the Grijalva standard rather than
the lesser requirement of Maknojiya v. Gonzales, 432 F.3d 588 (5th Cir. 2005),
in which this court held that the alien’s affidavit of non-receipt is sufficient to
demonstrate lack of notice when regular mail is used because “the ‘only proof’ is
the alien’s statement that he or she did not receive notice.” Maknojiya, 432 F.3d
at 590 (citing Ghounem v. Ashcroft, 378 F.3d 740, 744 (8th Cir. 2004)). See also
Kozak v. Gonzales, 502 F.3d 34, 37 (1st Cir. 2007); Salta v. INS, 314 F.3d 1076,
1079 (9th Cir. 2002).
         This argument is to no avail, as the record reveals that Jeon has failed to
meet even the lower standard of proof established by Maknojiya. Nowhere in
Jeon’s affidavit does she state that she did not receive the notice of hearing. Cf.
Maknojiya, 432 F.3d at 590 (“both Maknojiya and his counsel submitted
affidavits indicating that they did not receive the notice”); Salta, 314 F.3d at
1079 (“a sworn affidavit from Salta that neither she nor a responsible party
residing at her address received the notice should ordinarily be sufficient”);


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Ghounem, 378 F.3d at 745 (finding the Salta rule “sound”). Instead, Jeon’s
assertion of non-receipt is advanced only through the statements of counsel,
which are not evidence. INS v. Phinpathya, 464 U.S. 183, 188 n.6, 104 S. Ct. 584
(1984). Accordingly, Jeon has not established “reasonable cause” for her failure
to attend the deportation hearing and the BIA did not abuse its discretion when
it denied Jeon’s motion to reopen based upon her alleged lack of notice.1
B. Adjustment of Status
       Jeon next argues that the BIA erred when it dismissed as untimely her
motion to reopen based upon eligibility for adjustment of status.2 Applying the
regulations found at 8 C.F.R. § 1003.23(b)(1), which state that “[a] motion to
reopen must be filed within 90 days of the date of entry of a final administrative
order of removal, deportation, or exclusion, or on or before September 30, 1996,
whichever is later,” the BIA found that Jeon’s August 13, 2007, motion was not
timely filed by September 30, 1996. Jeon argues that the September 30, 1996,
deadline was impossible to meet because her husband did not file the I-130
immigrant relative petition making her eligible to adjust status under 8 U.S.C.



       1
         Because Jeon has not established that she did not actually receive notice of her
deportation hearing, we need not address Jeon’s arguments that the method of notice was not
“reasonably calculated” to apprise her of the hearing and thus violated due process as defined
in Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 70 S. Ct. 652 (1950).
       2
         Regarding her motion to reopen based upon lack of notice, Jeon also claims that the
BIA erred in penalizing her for waiting seventeen years after her deportation order, nine of
which lapsed after she admittedly became aware of the order, to move for reopening. While
Jeon is correct that 8 C.F.R. § 1003.23(b)(4)(iii)(A)(2) allows motions to reopen to be filed at
any time if due to non-receipt of notice, the BIA clearly acknowledged that Jeon’s motion to
reopen based due to lack of notice was timely. Contrary to Jeon’s arguments, the BIA did not
create a time limitation by enacting a diligence requirement; rather, the BIA merely
emphasized Jeon’s lack of diligence in explaining why her case did not warrant sua sponte
reopening.

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§ 1255(i) until May 1997. The finding of untimeliness is clearly correct. Thus
Jeon urges equitable tolling when she contends that her deportation proceeding
should be reopened because her opportunity to adjust status arose after the
filing deadline. This court has held, however, that a request for equitable tolling
is essentially an argument that the BIA should have exercised its discretion to
reopen sua sponte pursuant to 8 C.F.R. § 1003.2(a). We lack jurisdiction to
review the BIA’s decision not to invoke its sua sponte authority because no
meaningful legal standard exists by which to judge such discretionary decisions.
Ramos-Bonilla v. Mukasey, 543 F.3d 216, 220 (5th Cir. 2008) (citing Enriquez-
Alvarado v. Ashcroft, 371 F.3d 246, 249-50 (5th Cir. 2004)). Accordingly, this
part of Jeon’s appeal must be dismissed.
                                IV. Conclusion
      For the foregoing reasons, Jeon’s petition for review is DENIED in part
and DISMISSED in part.




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