Concepcion Gonzalez-De Mendoza v. Jefferson Sessio

Case: 16-60416 Document: 00514107152 Page: 1 Date Filed: 08/08/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-60416
Fifth Circuit
FILED
Summary Calendar August 8, 2017
Lyle W. Cayce
CONCEPCION GONZALEZ-DE MENDOZA, Clerk
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. A073 241 950
Before JONES, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM: *
Concepcion Gonzalez-De Mendoza, a native and citizen of Mexico,
petitions for review of the Board of Immigration Appeals (BIA) decision
affirming the immigration judge’s (IJ) denial of her January 2015 motion to
reopen her removal proceedings and to rescind her removal order entered in
absentia in October 1994. An immigration court’s denial of a motion to reopen
is reviewed “under a highly deferential abuse-of-discretion standard”. Gomez-
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009). The factual findings are
reviewed for substantial evidence. Ojeda-Calderon v. Holder, 726 F.3d 669,
672–73 (5th Cir. 2013); Lopez-Dubon v. Holder, 609 F.3d 642, 645 (5th Cir.
2010).
Gonzalez contends the BIA abused its discretion in denying her motion
to reopen and rescind her in absentia deportation order by finding the hearing
notice was personally served. She contends the BIA ignored an absence of
indication that she actually received notice of the rescheduled hearing on 31
October 1994. Gonzalez also contends the BIA abused its discretion by
ignoring that she did not receive notice of the hearing by certified mail. She
further asserts the BIA abused its discretion by failing to consider the factors
outlined in Matter of M-R-A-, 24 I. & N. Dec. 665, 674 (BIA 2008).
Under the rules applicable to immigration cases commenced prior to 30
September 1996, in absentia deportation orders may be rescinded only if the
alien files a motion to reopen within 180 days after the date of the order of
deportation, showing exceptional circumstances for her failure to appear, or at
any time files a motion to reopen demonstrating that she did not receive notice
of the hearing. 8 U.S.C. § 1252b(c)(3) (West 1993) (repealed 30 Sept. 1996); see
also Ojeda-Calderon, 726 F.3d at 673 (“Because Ojeda’s immigration
proceedings were initiated prior to the 1996 amendments to the INA, we must
apply the notice requirements set forth in former INA § 242B.”). Notice may
be by personal service or certified mail. 8 U.S.C. § 1252b(a)(2)(A) (West 1993)
(repealed) (requiring the INS to provide written notice of the deportation
hearing “in person to the alien (or, if personal service is not practicable, written
notice shall be given by certified mail to the alien or to the alien’s counsel of
record, if any)”); Ojeda-Calderon, 726 F.3d at 673.
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For a motion to reopen, we focus on whether the alien actually received
the required notice. Ojeda-Calderon, 726 F.3d at 673. The alien bears the
burden to demonstrate she did not receive notice. 8 U.S.C. § 1252b(c)(3) (West
1993); Ojeda-Calderon, 726 F.3d at 673.
The IJ and the BIA determined Gonzalez was personally served with the
notice of hearing when she appeared in immigration court on 28 September
1994, based on the notice in the record on which the clerk noted personal
service. The IJ noted Gonzalez had not contended she was not personally
served with this hearing notice. The BIA presumed the clerk who noted
Gonzalez was personally served on 28 September properly discharged his
duties. Substantial evidence in the record supports the finding that Gonzalez
was personally served with the notice of hearing. See Lopez-Dubon, 609 F.3d
at 647. Accordingly, the BIA did not abuse its discretion in affirming the IJ’s
denial of her motion to reopen and dismissing her appeal. See Gomez-Palacios,
560 F.3d at 358, 361.
Gonzalez’ reliance on M-R-A- is mistaken. In M-R-A-, the BIA sustained
the alien’s appeal, finding the alien had overcome the “weak” presumption that
he had received a notice of hearing sent to him by regular mail. 24 I. & N. Dec.
at 676. Needless to say, because substantial evidence supports the BIA’s
finding Gonzalez was personally served with notice informing her of the 31
October 1994 hearing, M-R-A- and its discussion of what evidence can be used
to overcome the presumption of delivery by regular mail does not apply.
DENIED.
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