Maria Rodriguez-Reyes v. Eric Holder, Jr.

Filing

UNPUBLISHED OPINION FILED. [13-60386 Affirmed in Part and Dismissed in Part for Lack of Jurisdiction] Judge: CDK , Judge: WED , Judge: JWE Mandate pull date is 06/16/2014 [13-60386]

Case: 13-60386

Document: 00512608414

Page: 1

Date Filed: 04/25/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-60386
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
April 25, 2014
Lyle W. Cayce
Clerk

MARIA ESTELA RODRIGUEZ-REYES,
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. A077 800 509
Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM: *

Maria Estela Rodriguez-Reyes, a native and citizen of Honduras, seeks
review of a decision by the Board of Immigration Appeals (BIA) affirming an
immigration judge’s (IJ) denial of her motion to reopen removal proceedings.
Alleging that she did not receive notice of the hearing at which she was ordered
removed in absentia, Rodriguez-Reyes contends that the denial of her motion
was an abuse of discretion and a violation of her due process rights.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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Date Filed: 04/25/2014

No. 13-60386
We review the denial of a motion to reopen under 8 U.S.C.
§ 1229a(b)(5)(C)(ii) using “a highly deferential abuse-of-discretion standard.”
Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009).

We review

questions of law de novo and factual findings for substantial evidence. Id.
Rodriguez-Reyes has not shown a due process violation. The decision
whether to grant a motion to reopen removal proceedings is purely
discretionary and does not rise to the level of a constitutional violation even if
the moving party had been eligible for it. Altamirano-Lopez v. Gonzales, 435
F.3d 547, 550 (5th Cir. 2006).
Nor has Rodriguez-Reyes shown that the IJ and BIA abused their
discretion in denying her motion to reopen. See Singh v. Gonzales, 436 F.3d
484, 487 (5th Cir. 2006). As an initial matter, Rodrigues-Reyes contends that
the notice of her hearing was legally insufficient because her written notice to
appear was not in Spanish. However, she did not exhaust her administrative
remedies by raising that claim before the BIA, and we therefore lack
jurisdiction to consider it. See Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir.
2004).
Rodriguez-Reyes’s remaining arguments lack merit. Rodriguez-Reyes
asserts that the IJ and BIA applied the wrong presumption of delivery in
finding that she received notice of her hearing. However, the immigration
courts correctly used the slight presumption of delivery applicable to notices
sent via regular mail. See Matter of M-R-A, 24 I & N Dec. 665, 672-73 (BIA
2008). Rodriguez-Reyes also asserts that the IJ and BIA erred by failing to
accept the truth of the affidavit she presented in support of her motion to
reopen. We do not require immigration courts to assume the credibility of such
an affidavit. See Maknojiya v. Gonzales, 432 F.3d 588, 589-90 (5th Cir. 2005).

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No. 13-60386
Finally, Rodriguez-Reyes unconvincingly challenges, as unsupported by
substantial evidence, the finding of the IJ and BIA that she received notice of
her hearing. Rodriguez-Reyes’s notice of hearing was sent via regular mail, as
authorized by statute, to the address listed in her immigration file.

See

8 U.S.C. § 1229a(2)(A), (c). It was not returned. Rodriguez-Reyes lived at the
listed address and her husband had received a certified letter at the residence.
She had no apparent incentive to attend her removal hearing and waited more
than 12 years after being served with a notice to appear before inquiring about
her immigration proceedings.

Those facts do not compel a finding that

Rodriguez-Reyes overcame the slight presumption of delivery that applies
when a notice of hearing is sent via regular mail. See Ojeda-Calderon v.
Holder, 726 F.3d 669, 672-73 (5th Cir. 2013); see also Matter of M-R-A-, 24 I. &
N. Dec. at 672-73 (discussing the factors relevant in considering an alien’s
receipt of notice). Rodriguez-Reyes has not shown that the IJ and BIA were
obligated to consider whether some household failure prevented her from
receiving the notice of hearing. See Ojeda-Calderon, 726 F.3d at 673.
Rodriguez-Reyes’s petition for review is DENIED in part and
DISMISSED in part for lack of jurisdiction.

Her outstanding motions,

including those for a change of venue, for an evidentiary hearing, for a stay of
removal, and to rescind her order of removal are DENIED.

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