     Case: 17-60728      Document: 00514900361         Page: 1    Date Filed: 04/03/2019




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


                                      No. 17-60728
                                                                                  FILED
                                                                               April 3, 2019
                                                                             Lyle W. Cayce
MARIA ELIDA GONZALEZ-DIAZ,                                                        Clerk

              Petitioner

v.

WILLIAM P. BARR, U. S. ATTORNEY GENERAL,

              Respondent




                        Petition for Review of an order of the
                           Board of Immigration Appeals
                                BIA No. A097 904 325


Before STEWART, Chief Judge, SOUTHWICK and ENGELHARDT, Circuit
Judges.

PER CURIAM:*
       Maria Gonzalez-Diaz was ordered removed in absentia in November
2004. In 2017, she filed a motion to reopen her removal proceedings because
she had not received notice of the 2004 removal hearing. The immigration
judge found she had received notice and denied the motion. The Board of
Immigration Appeals affirmed. We DENY the petition for review.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-60728
                 FACTUAL AND PROCEDURAL HISTORY
      Gonzalez-Diaz is a native and citizen of El Salvador who unlawfully
entered the United States in December 2003. She was arrested by local law
enforcement in Texas for failure to have identification and later released to
Customs and Border Protection (CBP). CBP issued her a notice to appear
(NTA) on October 4, 2004, charging her as removable for being “an alien
present in the United States without being admitted or paroled” and ordering
her to appear before an immigration judge (IJ) in Dallas at a date and time “to
be set.” Gonzalez-Diaz was then released with instructions to report to an
immigration officer each month. She never did. About two and half weeks
after her release, the immigration court sent Gonzalez-Diaz a notice of hearing
(NOH) to the address listed on her NTA. The NOH instructed Gonzalez-Diaz
to appear before an IJ on November 16, 2004. The NOH also indicated the
time and address at which Gonzalez-Diaz needed to present herself. When
Gonzalez-Diaz did not appear at the hearing, the IJ ordered her removed in
absentia.
      Over twelve years later, in January 2017, Gonzalez-Diaz once more
encountered immigration authorities. Gonzalez-Diaz asserts it was only then
she realized there was an outstanding removal order against her. She obtained
counsel who in May 2017 filed a motion with the immigration court to reopen
proceedings. See 8 U.S.C. § 1229a(b)(5)(C)(ii). Her argument was that she
lacked notice of the November 2004 hearing because she did not receive the
NOH. The IJ disagreed and denied the motion. The Board of Immigration
Appeals (BIA or Board) affirmed. Gonzalez-Diaz now petitions this court for
review.




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                                  No. 17-60728
                                 DISCUSSION
      “In reviewing the denial of a motion to reopen removal proceedings, we
review the BIA’s order and will evaluate the immigration judge’s underlying
decision only if it influenced the BIA’s opinion.”          Hernandez-Castillo v.
Sessions, 875 F.3d 199, 204 (5th Cir. 2017). We review the BIA’s factual
findings “under the substantial-evidence test” and we review its conclusions on
questions of law de novo. Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th
Cir. 2009). Ultimately, we “must affirm the BIA’s decision [to deny a motion
to reopen] as long as it is not capricious, without foundation in the evidence, or
otherwise so irrational that it is arbitrary rather than the result of any
perceptible rational approach,” — that is, an abuse of discretion. Id.
      Gonzalez-Diaz’s primary contention is the BIA erred in finding she had
notice of the November 2004 hearing. She had to be given notice in 2004 of
“[t]he time and place at which the proceedings [would] be held.” 8 U.S.C. §
1229(a)(1)(G)(i). The need is for “actual receipt of the required notice.” Gomez-
Palacios, 560 F.3d at 360. Even so, the “alien does not need to ‘personally
receive, read, and understand’” the NOH. Nunez v. Sessions, 882 F.3d 499, 506
(5th Cir. 2018) (quoting In re G-Y-R-, 23 I. & N. Dec. 181, 189 (B.I.A. 2001)).
“[W]hen a NOH is served via certified mail, a strong presumption of effective
service applies.” Mauricio-Benitez v. Sessions, 908 F.3d 144, 149 (5th Cir.
2018). “If the NOH is instead served by regular mail, we still apply a
presumption of effective delivery, but it is somewhat weaker.” Id.
      The IJ and BIA applied the weaker presumption. The Government
asserts that level of presumption indeed applies. Gonzalez-Diaz argues no
presumption should apply. She, however, did not raise this argument before
the BIA, and we do not consider it. See Omari v. Holder, 562 F.3d 314, 321-23
(5th Cir. 2009) (discussing 8 U.S.C § 1252(d)).


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                                  No. 17-60728
      We therefore assume the weaker presumption applies and move to the
question of whether Gonzalez-Diaz has rebutted it. There is a “non-exhaustive
list of factors” the BIA uses to determine if the “weaker presumption [is]
rebutted.” Mauricio-Benitez, 908 F.3d at 149-50 (citing In re M-R-A, 24 I. & N.
Dec. 665, 674 (B.I.A. 2008)). That list includes:
      (1) the [alien’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 application for relief, indicating that the [alien] 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 [alien’s] motion of statutory eligibility for relief, indicating
      that the [alien] had an incentive to appear; (6) the [alien’s]
      previous attendance at Immigration Court hearings, if applicable;
      and (7) any other circumstances or evidence indicating possible
      nonreceipt of notice.
In re M-R-A, 24 I. & N. Dec. at 674.
      Gonzalez-Diaz’s circumstances are similar to ones we contemplated in
Mauricio-Benitez, 908 F.3d at 149-51.        There, the slight presumption of
delivery arose, and the BIA concluded the alien did not rebut it because there
was little evidence the NOH did not arrive at the alien’s address. Id. at 150.
It was also relevant that the alien demonstrated a disregard for his
immigration process by not correcting an error in the address on his NTA, not
advising the immigration court of a change in address, “or otherwise follow[ing]
up on his immigration status for thirteen years.”           Id. at 151.   The alien
countered that an affidavit he submitted and his diligence in filing for
reopening “soon after discovering the in absentia order” were enough. Id. at
150-51.   We upheld the BIA’s decision because it was “not ‘irrational’ or
‘arbitrary.’” Id. at 151.


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                                       No. 17-60728
       Gonzalez-Diaz similarly has little evidence the NOH was not correctly
delivered.    She did submit her own affidavit in addition to those of two
witnesses who claim to have been living with her in 2004 and who state the
NOH was never received at their home. The BIA permissibly discounted their
weight by evaluating “the credibility of the statements” they contained in light
of the time gap and lack of evidence that the two witnesses actually lived with
Gonzalez-Diaz. Id. at 150. The BIA also “considered [the] permissible factor[]
. . . the NOH was not returned undelivered.” Id. Further, like Mauricio-
Benitez, Gonzalez-Diaz showed little concern for her immigration proceedings
in failing to report to an immigration officer despite her order of release
instructing her to do so monthly and by waiting over a decade without
“follow[ing] up on [her] immigration status.” Id. at 151. She asserts she was
eligible for relief in late 2004, and it is true she did come forward soon after
purportedly learning of the removal order. The BIA’s decision, nonetheless,
was not irrational or arbitrary. 1
       Gonzalez-Diaz contends the Agency erred in other ways. She says she
has been denied due process because she was ordered removed without notice
of a hearing and because the IJ and BIA were not impartial in her proceedings
to reopen. Due process claims are generally not subject to the exhaustion
requirement of Section 1252(d), but an exception exists for “procedural errors



       1Gonzalez-Diaz also argues the BIA erred by improperly considering certain evidence.
For instance, she argues the BIA’s discussion of her alleged eligibility for asylum and
Temporary Protected Status was inadequate. “The Board does not have to ‘write an exegesis
on every contention. What is required is merely that it consider the issues raised, and
announce its decision in terms sufficient to enable a reviewing court to perceive that it has
heard and thought and not merely reacted.’” Efe v. Ashcroft, 293 F.3d 899, 908 (5th Cir. 2002)
(quoting Becerra-Jimenez v. INS, 829 F.2d 996, 1000 (10th Cir. 1987)). Gonzalez-Diaz also
argues the BIA erroneously evaluated the “legality” of her November 2004 order of release.
The BIA considered the order as part of its reasoning that Gonzalez-Diaz knew she should
have reported to an immigration officer but did not. There are no indications the BIA did not
adequately consider Gonzalez-Diaz’s contentions or undertook “irrelevant” considerations.
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                                 No. 17-60728
that are correctable by the BIA.” Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir.
2004). That is the sort of due process violation Gonzalez-Diaz contends to have
suffered when she was initially ordered removed without notice of a hearing.
Although she “raised [relevant questions] indirectly” in her discussion of
whether she received notice of the hearing, she did not directly posit this due
process claim before the BIA. Id. at 136-37. Regarding her second due process
claim, “no liberty interest exists in a motion to reopen, and . . . due process
claims are not cognizable in the context of reopening proceedings.” Mejia v.
Whitaker, 913 F.3d 482, 490 (5th Cir. 2019) (alleged BIA due process violation
on motion to reopen); see also Altamirano-Lopez v. Gonzales, 435 F.3d 547, 550-
51 (5th Cir. 2006) (alleged IJ due process violation on motion to reopen).
      Lastly, Gonzalez-Diaz argues the BIA should have followed one its
regulations and referred her case to a three-member panel. See 8 C.F.R.
§ 1003.1(e)(5)-(e)(6). Although the BIA “had adequate mechanisms to address
and remedy” this procedural option, Gonzalez-Diaz did not make the argument
to the BIA. Omari, 562 F.3d at 323. We again have no jurisdiction to consider
an issue she presents for the first time in her petition for review. See id.
      The petition for review is DENIED.




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