Ochoa-Barrios v. Mukasey , 269 F. App'x 497 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 13, 2008
No. 07-60066
Summary Calendar Charles R. Fulbruge III
Clerk
DORA LUZ OCHOA-BARRIOS
Petitioner
v.
MICHAEL B MUKASEY, U S ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A00 109 691
Before GARWOOD, WIENER and BARKSDALE, Circuit Judges.
PER CURIAM:*
Dora Luz Ochoa-Barrios, a native and citizen of Guatemala, petitions for
review of a final order of the Board of Immigration Appeals (BIA) affirming the
denial of her motion to reopen her removal proceedings. Ochoa-Barrios failed to
appear for her removal hearing in January 2006 and was ordered removed in
absentia. She filed a motion to reopen in July 2006.
Ochoa-Barrios argues that her order of removal should be rescinded
because she did not receive notice of the hearing. She acknowledges that she
*
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should not be published and is not precedent except under the limited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.
No. 07-60066
was served with and signed the Notice to Appear, but she contends that the
pages of the Notice to Appear that she received did not include the page with the
hearing date. She contends that she was not aware of a hearing date. Ochoa-
Barrios argues that the Immigration Judge (IJ) did not address her contention,
instead relying on copies of the Department of Homeland Security (DHS) forms,
not the forms that she actually received.
The denial of a motion to reopen is reviewed for abuse of discretion, with
factual findings reviewed for substantial evidence and determinations of law
reviewed de novo. De Morales v. INS, 116 F.3d 145, 147 (5th Cir. 1997). The IJ
did not abuse his discretion by relying on the fact that Ochoa-Barrios
acknowledged personal service with her signature, rather than on the unsworn
allegation in the motion to reopen filed by her attorney that she did not actually
receive the paperwork. See Maknojiya v. Gonzales, 432 F.3d 588, 589 (5th Cir.
2005) (holding that when written notice is sent by regular, not certified, mail,
the alien may prove that he did not receive the notice by his own statement in
an affidavit). The unsworn and unsupported assertions in the motion to reopen
are not sufficient to overcome her signed certificate of service. See Thompson v.
INS, 51 F.3d 1045, * 2 (5th Cir. 1995) (noting authorities holding that an
attorney’s statements in a brief or motion do not constitute evidence).
Because Ochoa-Barrios has not established that the denial of her motion
to reopen was an abuse of discretion, the petition for review is DENIED.
2