     Case: 15-60846      Document: 00514073335         Page: 1    Date Filed: 07/14/2017




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

                                                                                   FILED
                                                                                July 14, 2017
                                      No. 15-60846
                                                                                Lyle W. Cayce
                                                                                     Clerk
DAGOBERTO HERNANDEZ-MATUTE, also known as Marlon Hernandez-
Matute,

               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. A097-910-170


Before STEWART, Chief Judge, and HIGGINBOTHAM and COSTA, Circuit
Judges.
PER CURIAM:*
       Petitioner Dagoberto Hernandez-Matute requests review of the Board of
Immigration Appeals’ (“BIA”) denial of his motion to reopen his in absentia
removal. For the reasons that follow, we DENY his petition.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-60846


                             I. BACKGROUND
      Hernandez-Matute is a citizen of Honduras who entered the United
States in 2001 and settled in Santa Fe, New Mexico. In June 2005, he was
riding on a bus that immigration officials stopped.       When they realized
Hernandez-Matute was undocumented, the officials detained Hernandez-
Matute and personally served him with a Notice to Appear (“NTA”). The NTA
noted that he was to have a hearing in El Paso, Texas, with the date and time
“to be set.” The certificate of service indicates that Hernandez-Matute received
oral notice in Spanish of the consequences of a failure to appear. The NTA also
listed Hernandez-Matute’s address as 2600 Camino Entrada, in Santa Fe.
      Hernandez-Matute did not appear at his removal hearing, and the
Immigration Judge (“IJ”) ordered him removed in absentia.           The record
includes a Notice of Hearing (“NOH”) for a removal proceeding to be held on
February 21, 2006 that lists the same address as the NTA. The NOH is dated
November 16, 2005, and its certificate of service indicates that it was sent to
“ALIEN” and “INS.” The record does not indicate that the NOH was returned.
Following Hernandez-Matute’s in absentia removal, the order of removal was
sent to the same Santa Fe address provided in the NTA, but it was returned
as undeliverable.
      In 2014, Hernandez-Matute filed a motion to reopen his removal
proceedings, arguing that he never received the NOH.          He attached an
unsigned, hand-written statement in Spanish with an English translation,
which asserted that he “remained at [his] address 2600 Camino Entrada Santa
Fe New Mexico for one year after [his] apprehension on [sic] 2005, and [he]
never received a citation to appear in Court.” Additionally, he claimed that
“because of economic means [he] was not able to investigate the case further.”
He submitted documentation of his marriage to a lawful permanent resident
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                                  No. 15-60846
in July of 2006 and the birth of their two children. Hernandez-Matute also
included a statement of support from his church, where he served as a
traveling evangelical minister.
      The IJ denied his motion to reopen, finding that the NOH had been sent
by regular mail and that Hernandez-Matute had failed to rebut the
presumption of receipt. The IJ also concluded that Hernandez-Matute did not
provide a mailing address at which he could be reached and that he “did not
act diligently to remedy the order of removal against him, as he suspected
something may be amiss in 2006, but did not move to reopen until 2014.”
      Hernandez-Matute appealed to the BIA. He claimed that he provided a
valid address but that “he never received the mail sent to him by the court.”
For the first time in his brief to the BIA, he asserted that he exercised proper
diligence because he contacted a law office in 2006, and was told that he had
been removed and that “there was nothing he could do” about the removal. The
BIA dismissed the appeal. In its decision, the BIA noted that Hernandez-
Matute was personally served with the NTA, while the NOH was mailed to the
address provided by Hernandez-Matute and that the NOH was not returned
as undeliverable. Therefore, the BIA concluded that Hernandez-Matute had
failed to overcome the presumption of delivery. The BIA further noted that by
waiting until 2014 to seek relief, after receiving the NTA in 2006, Hernandez-
Matute had not exercised due diligence.
      Hernandez-Matute timely filed this petition for review. After briefing
was concluded, this court issued its opinion in Hernandez v. Lynch, 825 F.3d
266 (5th Cir. 2016). We requested and received supplemental briefing to
address what impact, if any, Hernandez has on the present petition.
                       II. STANDARD OF REVIEW
      We review “the denial of a motion to reopen ‘under a highly deferential
abuse-of-discretion standard.’” Barrios-Cantarero v. Holder, 772 F.3d 1019,
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1021 (5th Cir. 2014) (per curiam) (quoting Zhao v. Gonzales, 404 F.3d 295, 303
(5th Cir. 2005)). The BIA “abuses its discretion when it issues a decision that
is capricious, irrational, utterly without foundation in the evidence, based on
legally erroneous interpretations of statutes or regulations, or based on
unexplained departures from regulations or established policies.” Id.
                              III. DISCUSSION
      Hernandez-Matute raises two points of error before this court. First, he
argues that there is insufficient evidence that the NOH was ever delivered.
Alternatively, he asserts that the BIA abused its discretion by determining
that he failed to rebut the presumption of delivery. We address each argument
in turn.
                           A. Mailing of the NOH
      Hernandez-Matute’s primary claim in his petition is that no
presumption of delivery should apply because there is insufficient evidence
that the NOH was ever mailed to him. An in absentia removal order may be
rescinded “upon a motion to reopen filed at any time if the alien demonstrates
that the alien did not receive notice.” 8 U.S.C. § 1229a(b)(5)(C)(ii); see also
Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009).
      We lack jurisdiction over this issue, however, because Hernandez-
Matute failed to exhaust his administrative remedies by not raising this
argument to the BIA. See 8 U.S.C. § 1252(d); Omari v. Holder, 562 F.3d 314,
321 (5th Cir. 2009) (“[P]arties must fairly present an issue to the BIA to satisfy
§ 1252(d)’s exhaustion requirement.”). Although Hernandez-Matute argued
generally to the BIA that he did not receive the NOH, he failed to challenge
the IJ’s underlying finding that the NOH was in fact mailed to him.
Accordingly, this issue is not properly before this court on appeal. See Omari,
562 F.3d at 321. Since we lack jurisdiction to review this issue, we do not
address it. Id.
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                                       No. 15-60846


                            B. Presumption of Delivery
       Hernandez-Matute also argues that the BIA abused its discretion when
it determined that he had failed to overcome the presumption of delivery via
regular mail. We disagree.
       When service of an NOH is made via mail, a rebuttable presumption of
receipt arises. See Hernandez, 825 F.3d at 269. A strong presumption of
receipt exists when service is made by certified mail “that may be overcome
only by the affirmative defense of nondelivery or improper delivery by the
Postal Service.” Id. (quoting Maknojiya v. Gonzales, 432 F.3d 588, 589 (5th
Cir. 2005) (per curiam)). However, “when 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.” Id. The BIA has a
duty to consider “all relevant evidence submitted to overcome the weaker
presumption of delivery.” Matter of M-R-A-, 24 I. & N. Dec. 665, 674 (BIA
2008).
       Hernandez-Matute submitted an unsigned, hand-written statement that
he never received the NOH. Even if we treat this statement with the same
evidentiary weight as an affidavit, 1 Hernandez-Matute has not shown that the
BIA abused its discretion in determining that he failed to rebut the
presumption of delivery via regular mail.




       1  See Hernandez v. Lynch, 825 F.3d 266, 270 (5th Cir. 2016) (“Where the
correspondence is sent by regular mail, and where there is no other evidence that the
petitioner was attempting to avoid the proceedings, the petitioner’s statement that he or she
did not receive the correspondence is sufficient evidence that mail delivery failed.” (quoting
Settim v. Gonzales, 171 F. App’x 436, 437 (5th Cir. 2006) (emphasis added) (unpublished)));
Zheng v. Holder, 499 F. App’x 336, 337 (5th Cir. 2012) (unpublished) (per curiam) (giving
some consideration to an unsworn letter). Additionally, both parties refer to Hernandez-
Matute’s letter as an “affidavit,” and the BIA did not find evidentiary flaw in the letter.
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                                  No. 15-60846
      In Hernandez, this court concluded that the BIA properly considered the
credibility of the alien’s affidavit but granted the petition for review because
the BIA failed to consider additional, relevant evidence that supported the
alien’s claim that he did not receive notice. 825 F.3d at 270. Specifically, the
BIA failed to consider the circumstantial evidence that the alien only
discovered the removal proceedings against him by having an attorney file a
Freedom of Information Act request and that he promptly filed a change of
address form with his motion to reopen. Id. at 270–71.
      No similar evidence was presented by Hernandez-Matute. Here, the BIA
considered Hernandez-Matute’s letter as well as evidence militating in favor
of denying his motion to reopen. The BIA concluded that the approximately
seven-year delay between the removal and motion to reopen indicated a lack
of diligence. See Matter of M-R-A-, 24 I. & N. Dec. at 674 (listing an alien’s due
diligence as a factor to consider); Sosa-Perdomo v. Lynch, 644 F. App’x 320,
321 (5th Cir. 2016) (unpublished) (per curiam) (nine-year delay indicated a lack
of diligence); Rahim v. Holder, 552 F. App’x 358, 360 (5th Cir. 2014)
(unpublished) (per curiam) (eight-year delay). The BIA also noted that
Hernandez-Matute was personally served with the NTA and orally told in
Spanish of the consequences of failing to attend his hearing. See Rahim, 552
F. App’x at 360; cf. Hernandez, 825 F.3d at 271 (noting that the BIA considered
that petitioner had not contested his receipt of the NTA, but concluding that
this was insufficient—without more—to justify the BIA’s decision).              It
considered, but properly rejected, the argument that Hernandez-Matute
contacted an attorney in 2006, which was raised for the first time in his
attorney’s brief to the BIA without supporting documentation. See Skyline
Corp. v. NLRB, 613 F.2d 1328, 1337 (5th Cir. 1980) (“Statements by counsel in
briefs are not evidence.”). Hernandez-Matute does not point to any evidence
the district court failed to consider, other than his unexhausted claim that
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                                      No. 15-60846
there was insufficient evidence the letter was ever mailed. Moreover, our
independent review of the record revealed no circumstantial evidence that the
BIA failed to consider. 2 Nor is this a case where the BIA applied the incorrect
legal standard. See Settim v. Gonzales, 171 F. App’x 436, 437 (5th Cir. 2006)
(unpublished) (granting review based on a petitioner’s affidavit where the BIA
applied the stronger certified mail presumption to an NOH sent by regular
mail).
         Accordingly, we conclude that the BIA did not abuse its discretion when
it denied Hernandez-Matute’s motion to reopen. Barrios-Cantarero, 772 F.3d
at 1021.
                                  IV. CONCLUSION
         For the foregoing reasons, Hernandez-Matute’s petition for review is
DENIED.




         Hernandez-Matute’s marriage to a lawful permanent resident is not circumstantial
         2

evidence of an incentive to appear at his hearing because his marriage occurred months after
the in absentia removal hearing. See Rahim v. Holder, 552 F. App’x 358, 360 (5th Cir. 2014)
(unpublished) (per curiam) (concluding the immigration status of petitioner’s husband did
not show an incentive to appear when he obtained lawful permanent status after her in
absentia removal hearing).
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