919 F.3d 951
5th Cir.2019Background
- Rosa Maria Navarrete-Lopez, a Salvadoran national, was personally served with an NTA on March 14, 2004, and gave an initial Houston mailing address; she filed a change-of-address to a different Houston address (Valley View) on April 3, 2004.
- The immigration court record contains a Notice of Hearing (NOH) addressed to Navarrete-Lopez at the Valley View address, with a handwritten certificate-of-service date of June 30, 2004, scheduling an August 24, 2004 hearing; the NOH was not returned as undeliverable.
- Navarrete-Lopez did not attend the August 24, 2004 hearing and an IJ entered an in absentia order of removal.
- She learned of the in absentia order years later after a 2011 I-130 by her daughter and a FOIA request; she filed a motion to reopen on February 15, 2017, with affidavits stating she never received the NOH and that the Valley View address remained suitable for mail.
- The IJ denied reopening for failure to rebut the presumption of delivery; the BIA affirmed after applying Matter of M‑R‑A‑ factors (noting no return as undeliverable, lack of corroboration of daughter's residency, no prior affirmative applications indicating incentive to appear, and lack of due diligence).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Navarrete‑Lopez rebutted the presumption that the NOH mailed by regular mail was received | Navarrete‑Lopez: affidavit (and daughter’s affidavit) stating NOH was never received; Valley View remained suitable mail address | DHS/BIA: NOH present in record addressed to Valley View, not returned as undeliverable, no corroboration of residence, no prior filings showing incentive, and delay/lack of due diligence | BIA did not abuse discretion; presumption of delivery stands and motion to reopen denied |
| Whether the BIA abused its discretion in weighing M‑R‑A‑ factors and finding lack of due diligence | Navarrete‑Lopez: affidavits sufficient under precedent for regular mail nonreceipt; discovery via FOIA justified reopening | BIA: totality shows failure to rebut delivery presumption and unexplained delay undermines due diligence | Court: BIA’s multi‑factor analysis was reasonable under deferential abuse‑of‑discretion review; affirmed |
Key Cases Cited
- Garcia‑Nuñez v. Sessions, 882 F.3d 499 (5th Cir.) (motion to reopen focuses on whether alien actually received notice)
- Maknojiya v. Gonzales, 432 F.3d 588 (5th Cir.) (an unflawed affidavit of nonreceipt can suffice to rebut presumption when regular mail used)
- Torres Hernandez v. Lynch, 825 F.3d 266 (5th Cir.) (stronger presumption for certified mail; weaker for regular mail)
- Barrios‑Cantarero v. Holder, 772 F.3d 1019 (5th Cir.) (standards for BIA abuse of discretion review)
- Mauricio‑Benitez v. Sessions, 908 F.3d 144 (5th Cir.) (due‑diligence analysis can center on actions after discovery of in absentia order and pre‑motion conduct)