Rivera-Fiallos v. Garland ( 2021 )

Case: 20-60011 Document: 00515924178 Page: 1 Date Filed: 07/02/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 2, 2021
No. 20-60011
Lyle W. Cayce
Summary Calendar
Clerk
Rosa Luz Rivera-Fiallos,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A097 836 449
Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Rosa Luz Rivera-Fiallos, a native and citizen of Honduras, petitions
for review of an order by the Board of Immigration Appeals (BIA) dismissing
her appeal from an immigration judge’s denial of her motion to reopen and
rescind her in absentia order of removal. Rivera-Fiallos argues that she is
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-60011 Document: 00515924178 Page: 2 Date Filed: 07/02/2021
No. 20-60011
entitled to reopening and rescission of her order of removal because, as she
attested in her affidavit, she did not receive notice of her removal
proceedings. Because she does not challenge the BIA’s determination that
she was not a minor when she entered the United States and that the notice
to appear was not defective, she has abandoned review of those issues. See
Chambers v. Mukasey, 520 F.3d 445, 448 n.1 (5th Cir. 2008).
We review the denial of a motion to reopen under a highly deferential
abuse-of-discretion standard. Lowe v. Sessions, 872 F.3d 713, 715 (5th Cir.
2017). An in absentia order of removal may be rescinded if an alien
demonstrates that she did not receive notice of the hearing. 8 U.S.C.
§ 1229a(b)(5)(C)(ii).
While a motion to reopen focuses on whether the alien actually
received the necessary notice and not whether the notice was properly
mailed, there is a presumption of effective service when a notice of hearing is
sent by regular mail. Nunez v. Sessions, 882 F.3d 499, 506 (5th Cir. 2018). In
determining whether this presumption is rebutted, “‘all relevant evidence,’
both direct and circumstantial, should be considered.” Navarrete-Lopez v.
Barr, 919 F.3d 951, 954 (5th Cir. 2019) (quoting Matter of M-R-A-, 24 I. & N.
Dec. 665, 674-75 (BIA 2008)). Because the BIA properly considered the
totality of the circumstances in determining that Rivera-Fiallos failed to rebut
the presumption of receipt, the BIA did not abuse its discretion in upholding
the denial of the motion to reopen. See Mauricio-Benitez v. Sessions, 908 F.3d
144, 150-51 (5th Cir. 2018).
Accordingly, the petition for review is DENIED. The
Government’s motion for summary disposition, which is docketed as a
motion for summary affirmance, is DENIED as moot.
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