Sheron Pancheta Foster v. U.S. Attorney General

Case: 12-10996 Date Filed: 09/26/2012 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-10996
Non-Argument Calendar
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Agency No. A091-418-058
SHERON PANCHETA FOSTER,
llllllllllllllllllllllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
lllllllllllllllllllllllllllllllllllllll lRespondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(September 26, 2012)
Before HULL, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
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Sheron Foster seeks review of the Board of Immigration Appeal’s (“BIA”)
dismissal of her appeal from the Immigration Judge’s (“IJ”) denial of her motion
to reopen her in absentia order of removal. Foster argues that the IJ and BIA erred
in denying her motion to reopen because she did not receive the Notice to Appear
(“NTA”).
We review the BIA’s denial of a motion to reopen for an abuse of
discretion. Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006). The BIA’s
discretion is quite broad, and review “is limited to determining whether there has
been an exercise of administrative discretion and whether the matter of exercise
has been arbitrary or capricious.” Id. The BIA’s factual findings are considered
“conclusive unless a reasonable factfinder would be compelled to conclude to the
contrary.” Lonyem v. U.S Att’y Gen., 352 F.3d 1338, 1340 (11th Cir. 2003). In
the context of a motion to reopen, whether an alien received sufficient notice of
his removal hearing is a finding of fact. See Contreras-Rodriguez v. U.S. Att’y
Gen., 462 F.3d 1314, 1317 (11th Cir. 2006) (granting petition for review and
remanding for the BIA to consider in the first instance whether petitioner received
a sufficient notice of hearing before being removed in absentia).
Any alien who does not attend a proceeding after written notice has been
provided is subject to removal in absentia if the government establishes by “clear,
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unequivocal, and convincing evidence” that it gave written notice and that the
alien was removable. INA § 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A). “[A]
mailing to the last known address is sufficient to satisfy the [government’s] duty to
provide an alien with notice of a deportation proceeding.” United States v. Zelaya,
293 F.3d 1294, 1298 (11th Cir. 2002).
An alien may seek rescission of an in absentia removal order by filing a
motion to reopen at any time if the alien demonstrates that he did not receive
proper notice of the removal proceedings or that he was in federal or state custody
at the time of the proceedings and the failure to appear was not his fault. INA
§ 240(b)(5)(C)(ii), 8 U.S.C. § 1229a(b)(5)(C)(ii). The BIA presumes receipt of a
notice of hearing sent by regular mail if “the notice was properly addressed and
mailed according to normal office procedures.” Matter of M-R-A-, 24 I. & N. Dec.
at 673. However, such presumption is weaker than when the notice is sent by
certified mail. Id. In evaluating whether an alien has rebutted the presumption of
receipt by mail, the BIA is to consider all relevant evidence, and, a number of
factors are relevant, including:
(1) the respondent’s affidavit; (2) affidavits from family members or
other individuals who are knowledgeable about the facts relevant to
whether notice was received; (3) the respondent’s actions upon
learning of the in absentia order, and whether due diligence was
exercised in seeking to redress the situation; (4) any prior affirmative
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application for relief, indicating that the respondent had an incentive
to appear; (5) any prior application for relief filed with the
Immigration Court or any prima facie evidence in the record or the
respondent’s motion of statutory eligibility for relief, indicating that
the respondent had an incentive to appear; (6) the respondent’s
previous attendance at Immigration Court hearings, if applicable; and
(7) any other circumstances or evidence indicating possible
nonreceipt of notice.
Id. at 673-74.
Here, the BIA did not err in concluding that Foster was provided proper
notice of her removal proceedings. The BIA properly applied the weaker
presumption of delivery. See Matter of M-R-A-, 24 I. & N. Dec. at 673. The BIA
noted that, in her statement, Foster admitted that the NTA was mailed to her
correct address, but she asserted that she had not received it. The BIA determined
that her statement and the other evidence submitted was insufficient to overcome
the presumption of delivery because none of the evidence provided an explanation
as to why the notice was not received. The BIA also determined that Foster did
not exercise due diligence despite her claims that she contacted USCIS because
she waited over nine years to file her motion to reopen and it noted that her
criminal history gave her an incentive not to appear. There is nothing in the record
that compelled the BIA to conclude that Foster did not have sufficient notice of
her removal proceedings. See Lonyem, 352 F.3d at 1340. Accordingly, the IJ and
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BIA did not abuse their discretion in denying Foster’s motion to reopen.
PETITION DENIED.
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