Erika Yanez-Pena v. Jefferson Sessions, III ( 2018 )

Case: 17-60629 Document: 00514706976 Page: 1 Date Filed: 11/01/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-60629 November 1, 2018
Summary Calendar
Lyle W. Cayce
Clerk
ERIKA JISELA YANEZ-PENA, also known as Erika Jisela Pena-Yanez,
Petitioner
v.
JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,
Respondent
Petitions for Review of an Order of the
Board of Immigration Appeals
BIA No. A088 349 634
Before REAVLEY, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Erika Jisela Yanez-Pena petitions for review of the Board of Immigration
Appeals’ (BIA) dismissal of her appeal from the Immigration Judge’s (IJ) order
denying her motion to reopen and rescind her in absentia removal order, in
which she asserted that she had not received notice of her removal proceedings.
We review the BIA’s decision under a deferential abuse of discretion standard,
overturning only if it was not “capricious, without foundation in the evidence,
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-60629
or otherwise so irrational that it is arbitrary rather than the result of any
perceptible rational approach.” Hernandez-Castillo v. Sessions, 875 F.3d 199,
203 (5th Cir. 2017) (internal quotation marks and citation omitted).
Yanez-Pena contends that the BIA erred as a matter of law and fact in
denying her motion to reopen because she established that she had not received
notice of her removal hearing. She contends that the BIA ignored relevant
caselaw and did not consider relevant factors in determining that she had not
rebutted the presumption of effective service applicable when notice is sent via
regular mail.
Substantial evidence supports the BIA’s determination that the hearing
notice was served on Yanez-Pena via regular mail to the admittedly correct
address that she provided to the immigration court. See Chun v. INS, 40 F.3d
76, 78 (5th Cir. 1994). Thus, a presumption of effective service applies, albeit
a weaker presumption than that applicable to service by certified mail. See
8 U.S.C. §§ 1229(a)(2), 1229(c), 1229a(b)(5)(A); see also Hernandez v. Lynch,
825 F.3d 266, 269 (5th Cir. 2016); Matter of M-R-A-, 24 I. & N. Dec. 665, 672-
73 (BIA 2008). Yanez-Pena contends that her affidavit and the affidavit of her
brother denying receipt of the hearing notice were alone sufficient to overcome
that presumption. The IJ and BIA noted that two hearing notices and the in
absentia removal order were mailed to her correct address and that none of
those documents were returned as undeliverable, providing evidence that they
were, in fact, delivered. See Hernandez, 825 F.3d at 271. The IJ correctly
weighed the credibility of the affidavits, finding that their claims that they did
not receive any of the three documents mailed to Yanez-Pena’s address of
record were implausible and therefore not credible. See Hernandez, 825 F.3d
at 270; 8 U.S.C. § 1158(b)(1)(B)(iii). The record does not compel the conclusion
that the affidavits were credible, and so under the substantial evidence
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No. 17-60629
standard, this court may not reverse this factual determination. Chun, 40 F.3d
at 78.
The record establishes that the BIA and IJ considered the proper factors,
such as the fact that there was no evidence that the hearing notice had been
returned as undeliverable. See Matter of M-R-A-, 24 I. & N. Dec. at 674. The
only evidence presented on these factors by Yanez-Pena was her affidavit and
that of her brother regarding no receipt of notice. The statements of her
counsel regarding other factors in her motion to reopen and brief are not
evidence. See Skyline Corp. v. NLRB, 613 F.2d 1328, 1337 (5th Cir. 1980)
(“Statements by counsel in briefs are not evidence.”).
The argument that the IJ ignored this court’s decision in Maknojiya v.
Gonzales, 432 F.3d 588 (5th Cir. 2005) lacks merit. In Maknojiya, we
remanded to the BIA because the IJ incorrectly applied the certified mail
presumption of delivery standard to a hearing notice sent by regular mail and
disregarded affidavits from the alien and his counsel. 432 F.3d at 589-90. In
Yanez-Pena’s case, the IJ and the BIA applied the correct presumption of
delivery for regular mail, and they considered the affidavits from Yanez-Pena
and her brother, concluding that they were not credible.
Yanez-Pena has not demonstrated that the BIA’s denial of her motion to
reopen constituted an abuse of discretion. Hernandez-Castillo, 875 F.3d at 203.
Accordingly, the petition for review is DENIED.
Yanez-Pena, by a petition for review timely received in this court on
January 18, 2018, also seeks review of the BIA’s denial of her motion to
reconsider. The BIA did not abuse its discretion by denying her motion to
reconsider. See Zhao v. Gonzales, 404 F.3d 295, 301 (5th Cir. 2005).
Accordingly, the second petition for review is DENIED.
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