Case: 18-60523 Document: 00514984692 Page: 1 Date Filed: 06/05/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 18-60523 United States Court of Appeals Summary Calendar Fifth Circuit FILED June 5, 2019 OLAYO CASTILLO-CARBALLO, Lyle W. Cayce Clerk Petitioner v. WILLIAM P. BARR, U. S. ATTORNEY GENERAL, Respondent Petition for Review of an Order of the Board of Immigration Appeals BIA No. A077 793 267 Before BARKSDALE, ELROD, and HO, Circuit Judges. PER CURIAM: * Olayo Castillo-Carballo, a native and citizen of Honduras, petitions for review of the decision of the Board of Immigration Appeals (BIA) dismissing his appeal from the denial by an Immigration Judge (IJ) of his motion to reopen and rescind a March 2000 in absentia removal order. Castillo contends the BIA and IJ ignored the applicable precedential decisions of our court and * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.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: 18-60523 Document: 00514984692 Page: 2 Date Filed: 06/05/2019 No. 18-60523 erroneously rejected his claim he did not receive notice of his immigration proceedings. We review the final decision of the BIA and, as in this instance, will also review the IJ’s ruling insofar as it affected the BIA’s decision. Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007). “Motions to reopen removal proceedings are disfavored, and we review BIA denials of these motions under a ‘highly deferential abuse-of-discretion standard.’” Mauricio-Benitez v. Sessions, 908 F.3d 144, 147 (5th Cir. 2018) (internal citations omitted), petition for cert. filed, (Feb. 6, 2019) (No.18-1055). Under that standard, we must affirm the BIA’s decision “[s]o long as [it] is not capricious, racially invidious, utterly without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach”. Nunez v. Sessions, 882 F.3d 499, 505 (5th Cir. 2018) (internal quotation marks and citation omitted). “We review the BIA’s factual findings under the substantial-evidence standard, which means that we cannot reverse the BIA’s factual determinations unless the evidence ‘compels a contrary conclusion.’” Id. (citation omitted). The BIA applies a “[weaker] presumption of receipt to a Notice to Appear or Notice of Hearing [(NOH)] sent by regular mail when the notice was properly addressed and mailed according to normal office procedures”. Matter of M-R- A-, 24 I. & N. Dec. 665, 673 (BIA 2008). In determining whether petitioner has presented sufficient evidence to overcome this weaker presumption, “all relevant evidence submitted to overcome the weaker presumption of delivery must be considered”. Id. at 674 (citation omitted). When 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”. Hernandez v. Lynch, 825 F.3d 266, 269 (5th Cir. 2016) (footnote 2 Case: 18-60523 Document: 00514984692 Page: 3 Date Filed: 06/05/2019 No. 18-60523 omitted). Even if the alien submits an ...
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