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Navarrete-Lopez v. Barr

United States Court of Appeals, Fifth Circuit

April 1, 2019


          Petition for Review of an Order of the Board of Immigration Appeals

          Before HIGGINBOTHAM, SMITH, and HIGGINSON, Circuit Judges.


         Petitioner 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.


         Rosa 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.[2] 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.

         A short 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.

         What 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.[3] 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.

         The 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 time.

         Seven 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 knowledge.[4]

         Then 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.

         The IJ 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."

         Navarrete-Lopez timely filed a petition for review in this court.

         STANDARD ...

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