     Case: 17-60717      Document: 00514659326         Page: 1    Date Filed: 09/27/2018




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

                                    No. 17-60717                               FILED
                                  Summary Calendar                     September 27, 2018
                                                                          Lyle W. Cayce
                                                                               Clerk
JOSE MEDARDO VASQUEZ-ROSAS,

                     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. A206 375 322


Before REAVLEY, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Jose Medardo Vasquez-Rosas petitions for review of the Board of
Immigration Appeals’ (BIA) dismissal of his appeal from the Immigration
Judge’s (IJ) order denying his motion to reopen and rescind his in absentia
removal order, in which he asserted that he had not received notice of his
removal proceedings. We review the BIA’s decision under a deferential abuse
of discretion standard, overturning only if it was “capricious, racially invidious,


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-60717

utterly without foundation in the evidence, or otherwise so irrational that it is
arbitrary rather than the result of any perceptible rational approach.”
Hernandez-Castillo v. Sessions, 875 F.3d 199, 203 (5th Cir. 2017) (internal
quotation marks and citation omitted).
      Vasquez-Rosas contends that the BIA erred as a matter of law in denying
his motion to reopen because he established that he had not received notice of
his removal hearing. He contends that the BIA ignored relevant caselaw and
relied on improper factors in determining that he had not rebutted the
presumption of effective service applicable when notice is sent via regular mail.
      Substantial evidence supports the BIA’s determination that the Notice
of Hearing (NOH) was served on Vasquez-Rosas via regular mail to both the
initial address and the updated address he provided to the immigration court.
See Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994). Thus, a presumption of
effective service applies, albeit a weaker presumption than that applicable to
service by certified mail. See 8 U.S.C. §§ 1229(a)(2), 1229(c), 1229a(b)(5)(A);
see also Hernandez v. Lynch, 825 F.3d 266, 269 (5th Cir. 2016); Matter of M-R-
A-, 24 I. & N. Dec. 665, 672-73 (BIA 2008). Although Vasquez-Rosas contends
that his own statement denying effective service was alone sufficient to
overcome that weaker presumption, the contention lacks merit because, as the
IJ noted, his statement denying service was not made under penalty of perjury.
See Hernandez, 825 F.3d at 269.
      Contrary to Vasquez-Rosas’s arguments, the record establishes that the
BIA and IJ relied on proper factors in concluding that he otherwise failed to
rebut the presumption of effective service, including his failure to provide
third-party affidavits from other persons knowledgeable about the facts
relevant to service, specifically, the residents at the addresses to which the
NOH was mailed. See Matter of M-R-A-, 24 I. & N. Dec. at 674. The BIA and



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                                No. 17-60717

IJ also properly considered the fact that there was no evidence that the NOH
had been returned as undeliverable from either mailing address provided by
Vasquez-Rosas, as well as the fact that, although Vasquez-Rosas acted with
diligence after discovering the in absentia removal order, he had not inquired
about the status of his case in the three years following his release from
detention and had no pending application for relief at the time of the removal
hearing which would have provided him with an incentive to appear. See
Hernandez, 825 F.3d at 271; Matter of M-R-A-, 24 I. & N. Dec. at 674.
     Vasquez-Rosas has not demonstrated that the BIA’s denial of his motion
to reopen constituted an abuse of discretion. Hernandez-Castillo, 875 F.3d at
203. Accordingly, the petition for review is DENIED.




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