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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Case: 17-60629 Document: 00514706976 Page: 2 Date Filed: 11/01/2018 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, ...
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