Martha Garcia v. Jefferson Sessions, III

Case: 16-60465 Document: 00514160464 Page: 1 Date Filed: 09/18/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 16-60465 FILED Summary Calendar September 18, 2017 Lyle W. Cayce Clerk MARTHA LIDIA GARCIA, Petitioner v. JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL, Respondent Petition for Review of an Order of the Board of Immigration Appeals BIA No. A098 401 870 Before BARKSDALE, PRADO, and OWEN, Circuit Judges. PER CURIAM: * Martha Lidia Garcia, a native and citizen of Honduras, seeks review of a decision by the Board of Immigration Appeals (BIA) affirming the immigration judge’s (IJ) denial of her motion to reopen removal proceedings. Garcia alleges she did not receive notice of the hearing at which she was ordered removed in absentia, and contends the denial of her motion constituted reversible error. (Garcia has not challenged the alternative denial of her requests for asylum, withholding of removal, or relief under the Convention Against Torture, and any such claims are abandoned. E.g., Soadjede v. * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.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: 16-60465 Document: 00514160464 Page: 2 Date Filed: 09/18/2017 No. 16-60465 Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003) (dismissing similar claims as abandoned in appeal based solely on procedural issues).) The denial of a motion to reopen under 8 U.S.C. § 1229a(b)(5)(C)(ii) is reviewed using “a highly deferential abuse-of-discretion standard”. Gomez- Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009). Questions of law are reviewed de novo; factual findings, for substantial evidence. Id. Garcia has not shown an abuse of discretion in denying her motion to reopen. Id. Delivery of notice sent by regular mail to the last address provided by the alien is presumed. Matter of M-R-A-, 24 I. & N. Dec. 665, 673 (B.I.A. 2008). “To reopen proceedings based on a claim of lack of receipt of notice”, the alien must “present[] sufficient evidence to overcome the [slight] presumption of delivery”. Id. In this instance, the slight presumption of delivery was correctly applied. Although Garcia submitted an affidavit stating she had not received notice of her hearing, the IJ and BIA found she failed to overcome the presumption of delivery because she: did not update her mailing address during the decade after she entered the country; did not provide supporting affidavits from family members; and gave no explanation for her failure to check on the status of her removal proceedings for nearly 11 years. Rather than dispute these findings, Garcia contends the record does not support the conclusion the notice of her removal hearing was mailed to her. She asserts that, although the IJ found she had been sent two notices, in August and early September 2004, no supporting documentation appeared in the record. But, we review only the findings of the BIA. Mikhael v. INS, 115 F.3d 299, ...

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