Case: 19-60885 Document: 00515528228 Page: 1 Date Filed: 08/14/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED August 14, 2020 No. 19-60885 Lyle W. Cayce Summary Calendar Clerk Delita Deysi Melendez De Arriola; Nancy Jacqueline Arriola-Melendez, Petitioners, versus William P. Barr, U. S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A071 777 729 BIA No. A071 777 731 Before Clement, Higginson, and Engelhardt, Circuit Judge. Per Curiam:* Delita Deysi Melendez de Arriola and her daughter, Nancy Jacqueline Arriola-Melendez, petition for review of the Board of Immigration Appeals’ * Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIRCUIT RULE 47.5.4.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: 19-60885 Document: 00515528228 Page: 2 Date Filed: 08/14/2020 No. 19-60885 (BIA) order denying their second motions to reopen and rescind their 1991 in absentia removal orders. In their motions to reopen and rescind, Petitioners asserted that they had not received notice of their removal proceedings. We review the BIA’s decision under a deferential abuse of discretion standard, overturning only if it was “capricious, without foundation in the evidence, 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, 203–04 (5th Cir. 2017) (internal quotation marks and citation omitted). Petitioners contend that they presented evidence that the INS repeatedly mailed documents to them that did not include their apartment number, making it impossible to deliver the documents. Petitioners assert that they did not receive the immigration court’s notice of hearing and that it is unreasonable to assume that the mailings could be delivered to them without a proper apartment number. In 2017, in an order denying Petitioners’ first motions to reopen, the immigration judge (IJ) found that the August 19, 1991, order denying their motions to change venue and setting their hearing for September 4, 1991, constituted proper notice of their hearing, that Petitioners had failed to rebut the presumption that the notices of hearing were delivered to them, and that their assertions that they did not receive notices were not credible. The IJ concluded that Petitioners had failed to show that they did not receive notice of their hearing or “reasonable cause” for their failure to appear. On appeal, the BIA stated that Petitioners had actual notice of their deportation proceedings as shown by their motion to change venue. Further, Petitioners’ decision to wait nearly 25 years before reinitiating their deportation proceedings demonstrated a lack of diligence, which undermined their claimed lack of notice of the September 4, 1991, hearing and militated against exercising discretion to reopen the deportation proceedings. Although 2 Case: 19-60885 Document: 00515528228 Page: 3 Date Filed: 08/14/2020 No. 19-60885 Petitioners sought review of the BIA’s 2017 decisions, we dismissed their petition for review for failure to file a brief. In 2019, the ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals