Idalia Sosa-Perdomo v. Loretta Lynch
644 F. App'x 320
5th Cir.2016Background
- Petitioner Idalia Sosa-Perdomo, a Guatemalan national, sought review of the BIA’s denial of her motion to reopen an in absentia removal order and the BIA’s denial of reconsideration.
- The IJ ordered removal in absentia and a hearing notice was mailed to an Illinois address listed on petitioner’s Form I-830.
- Sosa-Perdomo contended she never received the mailed hearing notice and argued she had not provided the Illinois address to immigration officials as required.
- The BIA upheld the IJ’s finding that the Illinois address was provided and that the presumption of delivery of the mailed notice was not rebutted.
- The BIA also considered Sosa-Perdomo’s long delay (over nine years) in filing to reopen and treated that lack of diligence as part of the record evaluation.
- The BIA denied relief and a three-member panel was not assigned; petitioner challenged these rulings on due process and assignment grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether notice was not received because petitioner didn’t provide the Illinois address as required | Sosa-Perdomo: she did not supply that address to immigration and thus did not receive notice | Government: Form I-830 shows the Illinois address was provided and notice presumptively delivered | Court: BIA’s factual finding that the address was provided is supported by substantial evidence; reopening not warranted |
| Whether petitioner rebutted the presumption of delivery of mailed hearing notice | Sosa-Perdomo: her affidavit and other evidence rebut delivery presumption | Government: mailed notice presumption stands; record doesn’t compel contrary conclusion | Court: BIA properly applied standard; petitioner failed to overcome presumption |
| Whether delay in seeking reopening (over nine years) improperly considered under Matter of M-R-A- | Sosa-Perdomo: consideration of delay was improper under M-R-A- | Government: delay is a relevant factor; BIA may consider all relevant evidence | Court: BIA did not misapply M-R-A-; consideration of diligence was permissible |
| Whether denial violated due process or warranted three-member panel | Sosa-Perdomo: denial violated due process; requested three-member panel | Government: motions were discretionary; no liberty interest; no panel required | Court: No due process violation; three-member panel not required; BIA did not abuse discretion |
Key Cases Cited
- Nolos v. Holder, 611 F.3d 279 (5th Cir. 2010) (jurisdiction to review motions to reopen/reconsider)
- Zhao v. Gonzales, 404 F.3d 295 (5th Cir. 2005) (abuse-of-discretion standard for BIA motions)
- Barrios-Cantarero v. Holder, 772 F.3d 1019 (5th Cir. 2014) (standards for BIA abuse of discretion)
- Zhu v. Gonzales, 493 F.3d 588 (5th Cir. 2007) (de novo review of law, substantial-evidence review of facts)
- Gomez-Palacios v. Holder, 560 F.3d 354 (5th Cir. 2009) (substantial-evidence test and due process in removal proceedings)