Joffre Perez-Marquin v. Eric Holder, Jr. , 397 F. App'x 8 ( 2010 )


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  •      Case: 09-60577     Document: 00511247789          Page: 1    Date Filed: 09/29/2010
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    September 29, 2010
    No. 09-60577
    Summary Calendar                         Lyle W. Cayce
    Clerk
    JOFFRE JORGE PEREZ-MARQUIN,
    Petitioner
    v.
    ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
    Respondent
    Petition for Review of an Order of the
    Board of Immigration Appeals
    BIA No. A072-406-497
    Before JONES, Chief Judge, and GARZA and BENAVIDES, Circuit Judges.
    PER CURIAM:*
    Joffre Jorge Perez-Marquin, a native and citizen of Ecuador, petitions for
    review of a final order of the Board of Immigration Appeals (BIA) dismissing his
    appeal of the Immigration Judge’s (IJ) denial of his motion to reopen his 1993
    deportation proceedings. After notice was sent to the address provided by Perez-
    Marquin by certified mail, Perez-Marquin failed to appear for his deportation
    hearing in March 1993 and was ordered deported in absentia. He filed a motion
    to reopen in January 2008.
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-60577
    Because Perez-Marquin’s deportation proceedings became final in 1993,
    prior to the April 1, 1997, effective date of the Illegal Immigration Reform and
    Immigrant Responsibility Act of 1996, the proceedings were subject to the
    provisions of former 8 U.S.C. § 1252b (1993) (repealed 1996). See Pub. L. No.
    104-208, title III, div. C, § 309(c), 
    110 Stat. 3009
    -625 (Sept. 30, 1996);
    Williams-Igwonobe v. Gonzales, 
    437 F.3d 453
    , 455 (5th Cir. 2006). Section 1252b
    provided that a deportation order entered in absentia could be rescinded upon
    a motion to reopen filed at any time “if the alien demonstrate[d] that the alien
    did not receive notice in accordance with subsection (a)(2) of this section . . . .”
    § 1252b(c)(3)(B) (repealed 1996).     The BIA found that the notice provided
    Perez-Marquin, however, was sufficient because the Immigration Court mailed
    the notice of hearing by certified mail to the address provided by Perez-Marquin
    and because he was personally served with an Order to Show Cause that warned
    him of the consequences for failing to provide a current address to the
    Immigration Court.
    Perez-Marquin argues that the BIA abused its discretion in dismissing his
    appeal.   Perez-Marquin contends that the BIA applied the incorrect legal
    standard when it failed to require “actual notice” of the hearing. In Maknojiya
    v. Gonzales, 
    432 F.3d 588
    , 589 (5th Cir.2005), this court reiterated the
    admonitions of Matter of Grijalva, 
    21 I. & N. Dec. 27
    , 37-38 (BIA 1995), that a
    strong presumption of effective service applies where notice was sent via
    certified mail and that the presumption “may be overcome only by the
    affirmative defense of nondelivery or improper delivery by the Postal Service.”
    As the BIA applied this standard in its analysis, Perez-Marquin has failed to
    show an error of law in the BIA’s analysis, even under de novo review. See
    Gomez-Palacios v. Holder, 
    560 F.3d 354
    , 358 (5th Cir. 2009).
    Perez-Marquin additionally argues that the BIA’s factual conclusions were
    not supported by the evidence because he filed an affidavit that contradicted the
    BIA’s factual conclusions. Perez-Marquin’s affidavit is ambiguous evidence at
    2
    Case: 09-60577    Document: 00511247789 Page: 3        Date Filed: 09/29/2010
    No. 09-60577
    the best. In it, Perez-Marquin avers that he came to the United States in
    January 1991, was apprehended by former Immigration and Naturalization
    Service, and was released when a family friend paid the bond for his release. In
    the next paragraph, Perez-Marquin states, without providing a date, that he
    went to live with the friend and remained at that address for approximately four
    months.   As proof that Perez-Marquin had not moved before notice of the
    hearing was mailed to him at the friend’s address in 1993, the affidavit fails to
    compel a conclusion contrary to that of the BIA. See Gomez-Palacios, 
    560 F.3d at 358
    .
    We lack jurisdiction to consider the arguments that Perez-Marquin has
    raised for the first time on appeal. See Roy v. Ashcroft, 
    389 F.3d 132
    , 137 (5th
    Cir. 2004). Specifically, Perez-Marquin argues that there is no proof that the
    Office of the IJ mailed the notice of the hearing, that the Certified Mail receipt
    does not reflect that the notice was actually mailed, that the IJ relied on an
    envelope that did not reflect mailing prior to the deportation hearing, and that
    INS violated his due process rights by holding an in absentia hearing where he
    did not receive actual notice.    As the BIA did not have the opportunity to
    consider these arguments in the first instance, this court lacks jurisdiction to
    consider them. See Roy, 
    389 F.3d at 137
    .
    We decline to consider Perez-Marquin’s claim, raised for the first time
    before this court in his reply brief, that the administrative record, including
    copies of the relevant mailing envelopes, was not available to him when he
    prepared his appeal of the IJ’s order to the BIA.          See United States v.
    Aguirre-Villa, 
    460 F.3d 681
    , 683 n.2 (5th Cir. 2006).
    Perez-Marquin has failed to show that the BIA’s decision is “capricious,
    without foundation in the evidence, or otherwise so irrational that it is arbitrary
    rather than    the   result of any     perceptible   rational approach.”       See
    Gomez-Palacios, 
    560 F.3d at 361
    . His petition for review is DENIED.
    3
    

Document Info

Docket Number: 09-60577

Citation Numbers: 397 F. App'x 8

Judges: Benavides, Garza, Jones, Per Curiam

Filed Date: 9/29/2010

Precedential Status: Non-Precedential

Modified Date: 8/3/2023