UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

HUGO LEONARDO MARTINEZ, Petitioner,

v. ERIC H. HOLDER, JR., United States Attorney General, Respondent. No. 13-9576 (Petition for Review)

ORDER AND JUDGMENT *

Before GORSUCH , McKAY , and ANDERSON , Circuit Judges.
Hugo Leonardo Martinez, a native and c itizen of Mexico, seeks review of an order by the Board of Immigration Appeal s (BIA) dismissing his appeal from a decision by the Immigration Judge (IJ) de nying his motion to reopen his removal proceedings. Exercising jurisdiction pursu ant to 8 U.S.C. § 1252, we deny the petition for review.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### February 26, 2014
Elisabeth A. Shumaker Clerk of Court- 2 - I. Background Mr. Martinez entered the United States i llegally in 1992 at the age of fourteen. He married a United States citizen in 1997 a nd filed an application for adjustment of status based on the marriage. His wife al so filed a Petition for Alien Relative in conjunction with his application to adjust his status. The gove rnment denied both applications and initiated removal proceedings. The government mailed Mr. Martinez a Notice to Appear (NTA) together with a notice that his application to adjust hi s status had been denied. The NTA and denial notice were sent by certified mail to his address on file, and the return receipt was signed by his wife. The immigration c ourt also mailed Mr. Martinez a notice of hearing (NOH) to that same address by regular mail. Mr. Martinez failed to appear at the h earing and the IJ orde red him removed in absentia based on information containe d in the NTA and his application for adjustment of status. Mr. Martinez was ar rested and removed from the United States in August of 1999. He illegally re-ent ered the country in February of 2000. On July 25, 2012, almost thirteen y ears after his removal, Mr. Martinez submitted a motion to reope n his removal proceedings, alleging that he had not received the NTA or the NOH. An IJ deni ed the motion, and the BIA dismissed the appeal from the IJ’s decision. Mr. Mar tinez now petitions for review of the BIA’s decision.- 3 - II. Discussion This court reviews for abuse of disc retion the BIA’s denial of a motion to
reopen. Infanzon v. Ashcroft , 386 F.3d 1359, 1362 (10th Cir. 2004). “The BIA abuses its discretion when its decision prov ides no rational explanation, inexplicably departs from established po licies, is devoid of any r easoning, or contains only summary or conclusory statements.” Id . (internal quotation marks omitted). In denying the motion to reopen, the IJ first concluded that Mr. Martinez could be charged with properly receiving the NT A because it was sent by certified mail to an address where he admitted he was living, and his wife signed the return receipt. The IJ then explained that the NOH was sent by regular mail to the same address as the NTA, which was the address Mr. Martinez had provided to immigration officials. The IJ further explained that the NOH was not returned as undeliverable. The IJ determined that these circumst ances gave rise to a presum ption of receipt, and that Mr. Martinez had failed to ove rcome this presumption. On appeal to the BIA, Mr. Martinez di d not challenge the IJ’s conclusion that he could be properly charged with receivi ng the NTA; he focused solely on his claim that he had not received the NOH. The BIA agreed with the IJ th at Mr. Martinez was afforded proper notice of his hearing and that he failed to rebut the presumption of delivery. In his brief before this court, Mr. Martinez argues that the BIA abused its discretion in denying his moti on to reopen. He conte nds that the BIA did not- 4 - consider the totality of the evidence in concluding that he had failed to rebut the presumption of delivery of the NOH. The BIA has recognized “that a letter properly addressed, stamped, and mailed is presumed to have been duly delivered to th e addressee.” Matter of M-R-A- , 24 I. & N. Dec. 665, 671 (BIA 2008) (internal quota tion marks omitted). The presumption of delivery by regular mail, howev er, is “weaker” than the presumption of delivery by certified mail. Id . at 673. To determine whether the presumption of regular mail delivery has been rebutted, the agency may consider a variety of factors. See id . at 674 (identifying non- exhaustive list of seven fact ors). But “[t]he burden of demonstrating the claimed lack of notice is on the alien.” Gurung v. Ashcroft , 371 F.3d 718, 722 ( 10th Cir. 2004). Here, the BIA expressly considered tw o of the factors: the alien’s due diligence in seeking to remedy the situation on ce he learned of the in absentia order, and the alien’s incentive to appear becau se of a previously filed affirmative application for relief. The BIA conclude d that Mr. Martinez had not shown due diligence in seeking to have his remova l proceedings reopene d because he waited thirteen years to file his motion to reopen after be ing removed. And the BIA further determined that Mr. Martinez did not have an incentive to appear at the hearing because his application to adju st his status had been denied four months earlier. The BIA also considered probative the IJ’s findi ng that Mr. Martinez ha d falsely stated in his affidavit attached to his motion to reopen that he had never received an- 5 - appointment notice for his application to adjust his status. Given all of these circumstances, the BIA agreed with the IJ that Mr. Ma rtinez had not rebutted the presumption of delivery of the NOH. In his brief on appeal, Mr. Martinez c oncedes that he made an “incorrect” statement that he had not received the appoi ntment notice related to his application for adjustment of status. Pet’r Br. at 23. But he cl aims that this is the only inconsistency that the agency co uld point to in his affidavit. He then asserts that the agency did not consider all of the facts of record, but he does not point to any relevant facts that the agency failed to consider. Instea d, he seeks to recast the evidence in a light more favorable to his position. Although Mr . Martinez disagrees with the BIA’s determination that he failed to rebut the presumption of delivery of the NOH, the BIA’s decision provided a rational explanation supported by the evidence in the record. Mr. Martinez has failed to demons trate that the BIA abused its discretion in denying his motion to reope n. Accordingly, we deny the petition for review. Entered for the Court
Monroe G. McKay Circuit Judge