Renato Xavier-De Oliveira v. Loretta Lynch , 670 F. App'x 307 ( 2016 )

Case: 14-60573 Document: 00513753211 Page: 1 Date Filed: 11/09/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 14-60573
Fifth Circuit
FILED
Summary Calendar November 9, 2016
Lyle W. Cayce
RENATO XAVIER-DE OLIVEIRA, Clerk
Petitioner
v.
LORETTA LYNCH, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A098 113 953
Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
Renato Xavier-De Oliveira, a native and citizen of Brazil, petitions for
review of the order by the Board of Immigration Appeals (BIA) denying his
motion to rescind and reopen an in absentia order of removal. He challenges
the BIA’s conclusion that (1) he failed to overcome the applicable presumption
of proper notice of his removal proceedings and (2) he did not warrant a sua
sponte reopening for exceptional circumstances.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 14-60573
Motions to reopen removal proceedings are disfavored, and the moving
party must satisfy a heavy burden. Altamirano-Lopez v. Gonzales, 435 F.3d
547, 549 (5th Cir. 2006). In reviewing the denial of a motion to rescind and
reopen, “this court applies a highly deferential abuse-of-discretion standard,
regardless of the basis of the alien’s request for relief.” Gomez-Palacios v.
Holder, 560 F.3d 354, 358 (5th Cir. 2009).
An alien who fails to appear at a removal proceeding shall be ordered
removed in absentia if the Government sufficiently establishes removability.
8 U.S.C. § 1229a(b)(5)(A). An in absentia removal order may be rescinded upon
a motion to reopen if the alien demonstrates that he “did not receive notice” in
the manner required by the statute. § 1229a(b)(5)(C)(ii). “[W]hen service is
furnished via regular mail, an alien’s statement in an affidavit that is without
evidentiary flaw may be sufficient to rebut the presumption of effective
service.” Torres Hernandez v. Lynch, 825 F.3d 266, 269 (5th Cir. 2016).
Significantly, Xavier-De Oliveira has provided no evidence to rebut the
presumption of delivery by regular mail. That presumption applies here
because he was personally served with the Notice to Appear and the notice of
hearing indicates that it was mailed to Xavier-De Oliveira’s address. Although
Xavier-De Oliveira, through counsel, argued in briefing that he did not receive
notice, such arguments of counsel do not constitute evidence. See Skyline Corp.
v. NLRB, 613 F.2d 1328, 1337 (5th Cir. 1980). In light of the fact that Xavier-
De Oliveira has provided only naked assertions, unsupported by any evidence,
in an attempt to rebut the presumption of delivery, we conclude that the BIA
did not abuse its discretion in denying the motion to reopen. Torres Hernandez,
825 F.3d at 269-71.
Finally, we do not have jurisdiction to consider Xavier-De Oliveira’s
alternative argument that the BIA improperly declined to exercise its sua
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No. 14-60573
sponte authority. This court has held that it lacks jurisdiction to review a BIA’s
discretionary decision to decline to reopen a case sua sponte. Enriquez-
Alvarado v. Ashcroft, 371 F.3d 246, 248–50 (5th Cir.2004). The Supreme
Court's decision in Mata v. Lynch did not disturb our court's prior precedent
on this point. 135 S. Ct. 2150, 2155, (2015) (explicitly declining to weigh in on
the holding of Enriquez-Alvarado). Nor is there any applicable jurisdictional
exception under 8 U.S.C. § 1252(a)(2)(D) for the alleged constitutional due
process violation because “there is no liberty interest at stake in a motion to
reopen.” Altamirano-Lopez v. Gonzales, 435 F.3d 547, 550 (5th Cir. 2006).
DENIED IN PART; DISMISSED IN PART.
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