Case: 11-60687 Document: 00511936275 Page: 1 Date Filed: 07/27/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 27, 2012
No. 11-60687 Lyle W. Cayce
Summary Calendar Clerk
JOSE ADOLFO PEREZ-PEREZ,
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. A029 957 081
Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
Jose Adolfo Perez-Perez petitions for review of an order of the Board of
Immigration Appeals (BIA) dismissing his appeal from the immigration judge’s
(IJ) order denying a motion to reopen. We DENY the petition.
The IJ originally entered an in absentia order for Perez-Perez’s
deportation to Ecuador after Perez-Perez failed to appear at a hearing on August
28, 1989. Prior to that hearing, two notices were sent via regular mail to a
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-60687
Chicago address provided by Perez-Perez but both notices were returned as
undeliverable. After the hearing, the IJ’s order of deportation was also mailed
to the Chicago address, but it too was returned by the Post Office as
undeliverable. Perez-Perez did not file his motion to reopen the proceedings
until nearly twenty-two years later, arguing that the deportation order should
be vacated because he never received proper notice of his deportation hearing.
The BIA determined that, prior to his release on bond, Perez-Perez was
personally served with an Order to Show Cause informing him of the
consequences of a failure to appear at a later hearing. It further determined
that Perez-Perez failed to present any evidence showing that he fulfilled his
obligation to ensure that the Immigration Court was aware of an address where
he could be contacted. The BIA concluded, therefore, that the deportation order
should not be rescinded for lack of notice. In the present petition for review,
Perez-Perez maintains his argument that he was not properly notified of his
hearing. He argues that the fact that the hearing notices were returned shows
that he did not receive notice and that he presented his own affidavit attesting
to the validity of the address he provided to the Immigration Court. We are
unpersuaded.
We review the denial of a motion to reopen under a highly deferential
abuse-of-discretion standard. Lara v. Trominski, 216 F.3d 487, 496 (5th Cir.
2000). Motions to reopen immigration proceedings are generally not favored.
Ghassan v. INS, 972 F.2d 631, 638 (5th Cir. 1992).
A deportation order will not be set aside “if ‘the alien’s failure to receive
actual notice was due to his neglect of his obligation to keep the immigration
court apprised of his current mailing address.’” Lopez-Dubon v. Holder, 609 F.3d
642, 647 (5th Cir. 2010) (quoting Gomez-Palacios v. Holder, 560 F.3d 354, 360
(5th Cir. 2009)). Postal service employees are presumed to discharge their duties
properly. Matter of M-R-A-, 24 I&N Dec. 665, 672 (BIA 2008). When a hearing
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No. 11-60687
notice has been sent via regular mail, as in this case, the presumption that
notice was delivered and actually received is weaker than when notice is sent by
certified mail. Id. In the face of delivery of a notice by regular mail, an alien’s
affidavit averring that he did not receive the notice can be some evidence that
notice was not properly given. See Maknojiya v. Gonzales, 432 F.3d 588, 590
(5th Cir. 2005). In this case, however, the issue is not whether Perez-Perez
received actual notice of the hearing—we know that he did not because the mail
was returned as undeliverable—but rather whether he fulfilled his duty to give
the Immigration Court a valid address for mail purposes. Unlike the single
hearing notice that was returned in Maknojiya, the Post Office in this case thrice
attempted to deliver mail to Perez-Perez at the address he provided but was
unsuccessful on each occasion. This supports the IJ’s and the BIA’s conclusion
that Perez-Perez either was unable to receive mail at that address or that he was
not accepting mail sent to him at that address. Furthermore, Perez-Perez
averred in his affidavit that he lived at the address, but he did not aver that he
or his brother and sister-in-law, with whom he lived, received mail at the
address, nor did he present corroborating evidence from his brother or sister-in-
law. Under these circumstances, the BIA’s conclusion was supported by
substantial evidence and its decision to affirm the denial of the motion to reopen
was “not capricious, without foundation in the evidence, or otherwise so
irrational that it is arbitrary rather than the result of any perceptible rational
approach.” Gomez-Palacios, 560 F.3d at 358.
To the extent that Perez-Perez argues that the BIA should have sua sponte
reopened his deportation proceedings, we lack jurisdiction to review the BIA’s
discretionary action. See Lopez-Dubon, 609 F.3d at 647.
The petition for review is DENIED.
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