Petition for Review of an Order of the Board of Immigration
HIGGINBOTHAM, SMITH, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, CIRCUIT JUDGE
Rosa Maria Navarrete-Lopez asks this court to reverse a
decision by the Board of Immigration Appeals denying her
motion to reopen removal proceedings. Navarrete-Lopez alleges
that she never received a Notice of Hearing. Finding no abuse
of discretion in the Board's determination that
Navarrete-Lopez failed to rebut the presumption of receipt,
we deny the petition.
Maria Navarrete-Lopez is a native and citizen of El Salvador.
On March 14, 2004, she entered the United States without
being admitted or paroled. That same day, the Department of
Homeland Security ("DHS") served her personally
with a Notice to Appear ("NTA"), charging her with
being removable and notifying her of a hearing on a date and
at a time "to be set." The NTA also informed
Navarrete-Lopez that she had an obligation to keep
immigration authorities apprised of her current mailing
address. At that time, Navarrete-Lopez told
immigration officers that she would reside and receive mail
at an address on South Dairy Ashford Road in Houston, Texas.
while later, on April 3, Navarrete-Lopez filed a
change-of-address form designating a new address on Valley
View Lane, also in Houston. The immigration court received
the form on April 8.
happened next is the subject of debate. According to the
respondent, a "Notice of Hearing" ("NOH")
was sent to Navarrete-Lopez at the Valley View address on
June 30 via regular mail. Navarrete-Lopez does not dispute
that there is a document in the record entitled "Notice
of Hearing" that, on its face, reflects a regular mail
send date around that time. That document is undisputedly
addressed to Navarrete-Lopez, at the Valley View address, and
notices a hearing set for August 24, 2004 at 9:00 a.m. There
is no evidence that it was ever returned as undeliverable.
But Navarrete-Lopez insists that she never received it.
parties agree that Navarrete-Lopez did not attend the August
24 hearing, and that an Immigration Judge ("IJ")
entered an in absentia order of removal at that
years passed. In late 2011, Navarrete-Lopez's daughter
filed an I-130 Petition for Alien Relative on behalf of
Navarrete-Lopez. DHS approved the petition in April 2012.
According to Navarrete-Lopez, after the petition was
approved, she consulted with a lawyer about adjusting her
status to that of a lawful permanent resident. To that end,
she explains, her attorney made a Freedom of Information Act
("FOIA") request. The request apparently uncovered
the August 2004 in absentia removal order, about
which Navarrete-Lopez claims she had no prior
five more years passed. On February 15, 2017, Navarrete-Lopez
filed a motion to reopen the removal proceedings that had
commenced in 2004. An affidavit from her and an affidavit
from her daughter accompanied the motion.
Navarrete-Lopez's affidavit recounts the original change
of address from South Dairy Ashford Road to Valley View and
states that she had moved from place to place in subsequent
years. The affidavit explains that, nevertheless, Valley View
remained-from 2004 up to that present time-a suitable address
at which to receive mail because it was her daughter's
stable residence. Both affidavits affirm that an NOH was
never received at Valley View. Neither affidavit discusses
the FOIA request or the passage of five years between
Navarrete-Lopez's discovery of the removal order and her
motion to reopen.
denied Navarrete-Lopez's motion to reopen, finding that
she had not dislodged the presumption that the NOH was
delivered to her mailing address. The BIA affirmed, reasoning
that the "totality of the circumstances" supported
the IJ's conclusion. Specifically, the BIA observed that
the NOH was not returned as undeliverable, that there was no
evidence corroborating Navarrete-Lopez's daughter's
residency at the Valley View address, that Navarrete-Lopez
had not submitted a prior application for relief indicating
an incentive to appear, and that Navarrete-Lopez demonstrated
a lack of "due diligence."
timely filed a petition for review in this court.