     Case: 18-60673      Document: 00515217445         Page: 1    Date Filed: 11/29/2019




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


                                    No. 18-60673
                                                                                FILED
                                                                        November 29, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
JIMMY NOE RODRIGUEZ AUCEDA,

                                                 Petitioner

v.

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

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A077 530 638


Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Jimmy Noe Rodriguez Auceda, a native and citizen of Honduras,
petitions this court for review of the decision of the Board of Immigration
Appeals (BIA) dismissing his appeal of the denial by an immigration judge (IJ)
of his motion to reopen after an in absentia removal order. He argues that the
BIA and IJ ignored the applicable precedential decisions of this court and




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 18-60673     Document: 00515217445     Page: 2   Date Filed: 11/29/2019


                                  No. 18-60673

erroneously determined that he had not rebutted the presumption of delivery
afforded to the properly addressed and mailed notice of hearing.
      Rodriguez Auceda argues, for the first time, that his notice to appear was
defective for failing to specify a time or place for his removal hearing and, in
light of Pereira v. Sessions, 138 S. Ct. 2105 (2018), we should remand his case
for further consideration.    As Rodriguez Auceda failed to challenge the
sufficiency of the notice to appear before the BIA, we lack jurisdiction to review
his argument on petition for review. See Nunez v. Sessions, 882 F.3d 499, 505
n.2 (5th Cir. 2018). Even if we had jurisdiction, Rodriguez Auceda’s argument
would be foreclosed by our recent decision in Pierre-Paul v. Barr, 930 F.3d 684,
689 (5th Cir. 2019) (holding that a notice to appear is not defective as a
charging document even if it omits the time or place of the initial hearing).
      We review the final decision of the BIA and also will review the IJ’s
ruling insofar as it affected the BIA’s decision. Zhu v. Gonzales, 493 F.3d 588,
593 (5th Cir. 2007). Motions to reopen removal proceedings are disfavored,
and we thus review the BIA’s denial of a motion to reopen “under a highly
deferential abuse-of-discretion standard.” Mauricio-Benitez v. Sessions, 908
F.3d 144, 147 (5th Cir. 2018) (internal quotation marks and citation omitted),
cert. denied, 139 S. Ct. 2767 (2019). Under that standard, we must affirm the
BIA’s decision “[s]o long as [it] is not 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.” Nunez,
882 F.3d at 505 (internal quotation marks and citation omitted). We review
the BIA’s factual findings using “the substantial-evidence standard, which
means that we cannot reverse the BIA’s factual determinations unless the
evidence compels a contrary conclusion.” Id. (internal quotation marks and
citation omitted).



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                                 No. 18-60673

      The BIA applies a “presumption of receipt to a Notice to Appear or Notice
of Hearing sent by regular mail when the notice was properly addressed and
mailed according to normal office procedures,” although such presumption is
weaker than that applied to documents sent by certified mail.          Matter of
M-R-A-, 24 I. & N. Dec. 665, 673 (BIA 2008). In determining whether the
petitioner has presented sufficient evidence to overcome this weaker
presumption, “all relevant evidence submitted to overcome the weaker
presumption of delivery must be considered.” Id. at 674. 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.” Hernandez v. Lynch, 825 F.3d 266, 269 (5th Cir. 2016). However,
even if the alien submits an affidavit without evidentiary flaw, the BIA does
not necessarily err in concluding that the weaker presumption of delivery was
not rebutted, so long as the BIA properly considered all of the relevant
evidence. See Mauricio-Benitez, 908 F.3d at 150-51; see also Matter of M-R-A-,
24 I. & N. Dec. at 674.
      Contrary to Rodriguez Auceda’s arguments, the BIA did not ignore
precedential decisions or err in failing to reopen the removal proceedings based
solely upon the “only proof” of nondelivery, Rodriguez Auceda’s affidavit. See
Mauricio-Benitez, 908 F.3d at 150 (“[T]he BIA did not err in concluding that
the presumption of delivery was not rebutted by [the alien’s] affidavit alone.”).
The BIA considered all the relevant evidence and applied the correct legal
standard; its determination that Rodriguez Auceda “failed to rebut the
presumption of delivery of regular mail was not ‘irrational’ or ‘arbitrary.’” Id.
at 150-51.
      Accordingly, Rodriguez Auceda’s petition for review is DENIED IN
PART and DISMISSED IN PART FOR LACK OF JURISDICTION.



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