Joffre Perez-Marquin v. Eric Holder, Jr.

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UNPUBLISHED OPINION FILED. [09-60577 Affirmed ] Judge: EHJ , Judge: EMG , Judge: FPB Mandate pull date is 11/22/2010 [09-60577]

Joffre Perez-Marquin v. Eric Holder, Jr.

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Case: 09-60577

Document: 00511247789

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Date Filed: 09/29/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-60577 S u m m a r y Calendar September 29, 2010 Lyle W. Cayce Clerk

J O F F R E JORGE PEREZ-MARQUIN, P e titio n e r v. E R I C H. HOLDER, JR., U. S. ATTORNEY GENERAL, R espon dent

P e tit io n for Review of an Order of the B o a r d of Immigration Appeals B I A No. A072-406-497

B e fo r e JONES, Chief Judge, and GARZA and BENAVIDES, Circuit Judges. P E R CURIAM:* J o ffr e Jorge Perez-Marquin, a native and citizen of Ecuador, petitions for r e v ie w of a final order of the Board of Immigration Appeals (BIA) dismissing his a p p e a l of the Immigration Judge's (IJ) denial of his motion to reopen his 1993 d e p o r t a t io n proceedings. After notice was sent to the address provided by PerezM a r q u in by certified mail, Perez-Marquin failed to appear for his deportation h e a r in g in March 1993 and was ordered deported in absentia. He filed a motion t o reopen in January 2008.
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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B e c a u s e Perez-Marquin's deportation proceedings became final in 1993, p r io r to the April 1, 1997, effective date of the Illegal Immigration Reform and I m m ig r a n t Responsibility Act of 1996, the proceedings were subject to the p r o v is io n s of former 8 U.S.C. § 1252b (1993) (repealed 1996). See Pub. L. No. 1 0 4 -2 0 8 , title III, div. C, § 309(c), 110 Stat. 3009-625 (Sept. 30, 1996); W illia m s -I g w o n o b e v. Gonzales, 437 F.3d 453, 455 (5th Cir. 2006). Section 1252b p r o v id e d that a deportation order entered in absentia could be rescinded upon a motion to reopen filed at any time "if the alien demonstrate[d] that the alien d id not receive notice in accordance with subsection (a)(2) of this section . . . ." § 1252b(c)(3)(B) (repealed 1996). The BIA found that the notice provided

P e r e z -M a r q u in , however, was sufficient because the Immigration Court mailed t h e notice of hearing by certified mail to the address provided by Perez-Marquin a n d because he was personally served with an Order to Show Cause that warned h im of the consequences for failing to provide a current address to the I m m ig r a t io n Court. P e r e z -M a r q u in argues that the BIA abused its discretion in dismissing his a p p e a l. Perez-Marquin contends that the BIA applied the incorrect legal

s t a n d a r d when it failed to require "actual notice" of the hearing. In Maknojiya v . Gonzales, 432 F.3d 588, 589 (5th Cir.2005), this court reiterated the a d m o n itio n s of Matter of Grijalva, 21 I. & N. Dec. 27, 37-38 (BIA 1995), that a s t r o n g presumption of effective service applies where notice was sent via c e r t ifie d mail and that the presumption "may be overcome only by the a ffir m a t iv e defense of nondelivery or improper delivery by the Postal Service." As the BIA applied this standard in its analysis, Perez-Marquin has failed to s h o w an error of law in the BIA's analysis, even under de novo review. See G o m e z -P a la c io s v. Holder, 560 F.3d 354, 358 (5th Cir. 2009). P ere z-M a rq u in additionally argues that the BIA's factual conclusions were n o t supported by the evidence because he filed an affidavit that contradicted the B I A 's factual conclusions. Perez-Marquin's affidavit is ambiguous evidence at 2

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t h e best. In it, Perez-Marquin avers that he came to the United States in J a n u a r y 1991, was apprehended by former Immigration and Naturalization S e r v ic e , and was released when a family friend paid the bond for his release. In t h e next paragraph, Perez-Marquin states, without providing a date, that he w e n t to live with the friend and remained at that address for approximately four m on th s. As proof that Perez-Marquin had not moved before notice of the

h e a r in g was mailed to him at the friend's address in 1993, the affidavit fails to c o m p e l a conclusion contrary to that of the BIA. See Gomez-Palacios, 560 F.3d a t 358. W e lack jurisdiction to consider the arguments that Perez-Marquin has r a is e d for the first time on appeal. See Roy v. Ashcroft, 389 F.3d 132, 137 (5th C ir . 2004). Specifically, Perez-Marquin argues that there is no proof that the O ffic e of the IJ mailed the notice of the hearing, that the Certified Mail receipt d o e s not reflect that the notice was actually mailed, that the IJ relied on an e n v e lo p e that did not reflect mailing prior to the deportation hearing, and that I N S violated his due process rights by holding an in absentia hearing where he d id not receive actual notice. As the BIA did not have the opportunity to

c o n s id e r these arguments in the first instance, this court lacks jurisdiction to c o n s id e r them. See Roy, 389 F.3d at 137. W e decline to consider Perez-Marquin's claim, raised for the first time b e fo r e this court in his reply brief, that the administrative record, including c o p ie s of the relevant mailing envelopes, was not available to him when he p r e p a r e d his appeal of the IJ's order to the BIA. A g u ir r e -V illa , 460 F.3d 681, 683 n.2 (5th Cir. 2006). P e r e z -M a r q u in has failed to show that the BIA's decision is "capricious, w it h o u t foundation in the evidence, or otherwise so irrational that it is arbitrary r a t h e r than the result of any perceptible rational approach." See See United States v.

G o m e z -P a la c io s , 560 F.3d at 361. His petition for review is DENIED.

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