IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-60792

Summary Calendar

ROBERTO ENRIQUE MAURICIO-BENITEZ, also known as Roberto 

Sanchez-Fajardo, 

 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 121 741

Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

Petitioner Roberto Enrique Mauricio-Benitez, a native and citizen of El 

Salvador, seeks review of a final order of removal issued by the Board of 

Immigration Appeals (BIA). He contends that the BIA erred in refusing to 

reopen his removal proceedings because he never received notice of his removal 

hearing. Because Mauricio-Benitez failed to provide the immigration court 

with his correct mailing address, and because he failed to rebut the weak 

presumption of delivery of his notice of hearing (NOH), we DENY his petition 

for review.

United States Court of Appeals

Fifth Circuit

FILED

November 8, 2018

Lyle W. Cayce

Clerk

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I.

On or around June 13, 2004, Mauricio-Benitez entered the United States 

near Roma, Texas, without being admitted or paroled. The same day, the 

Department of Homeland Security (DHS) personally served him with a Notice 

to Appear (NTA) charging him with being removable under 8 U.S.C. 

§ 1182(a)(6)(A)(i). The NTA ordered Mauricio-Benitez to appear at a removal 

hearing before an immigration judge (IJ) at a date and time to be set and noted 

the following: “If you fail to attend the hearing . . . a removal order may be 

made by the [IJ] in your absence[.]” Mauricio-Benitez acknowledged on the 

NTA that he had received oral notice in Spanish of the consequences of failing 

to appear.

The NTA also contained instructions regarding Mauricio-Benitez’s 

mailing address. It stated that he was required to provide the DHS with his 

address in writing and warned him to “notify the Immigration Court 

immediately” if he changed his address because “[n]otices of hearing [would] 

be mailed to this address.” In addition, it notified Mauricio-Benitez that if he 

did not provide an address at which he could be reached during his removal 

proceedings, he would not be entitled to receive written notice of his hearing. 

The mailing address listed on the NTA was “4010 West Belford Apt. 705,” 

whereas Mauricio-Benitez claims that his correct address at the time was 

“4010 West Belfort Apt. 705.” According to Mauricio-Benitez, he provided the 

correct address, but an immigration officer introduced the spelling error when 

preparing the NTA. There is no indication in the record that he corrected the 

address when he received the NTA.

The following month, the DHS sent a NOH to Mauricio-Benitez at the 

West Belford address via regular mail. The NOH informed Mauricio-Benitez 

that his removal hearing had been scheduled for September 21, 2004, and 

again warned him of the consequences of failing to appear. Mauricio-Benitez 

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did not attend the hearing, and the IJ entered an in absentia order for his 

removal to El Salvador.

Almost thirteen years later, in June 2017, Mauricio-Benitez filed a 

motion to reopen his removal proceedings and rescind the in absentia removal 

order. He alleged that he had never received notice of his removal hearing, 

and, as a result, he did not find out about the order until his attorney filed a 

Freedom of Information Act (FOIA) request in January 2017. He also 

contended that he first learned of the spelling error in the mailing address on 

his NTA through the FOIA request.

The IJ denied Mauricio-Benitez’s motion. She first observed that

Mauricio-Benitez “did not provide the Court with an address change, as 

required by the regulations,” to correct the NTA or when he moved from the 

address listed on the NTA six months later. Thus, the IJ found that the 

immigration court was only required to send the NOH to the last mailing 

address it had on file—the West Belford address. Accordingly, MauricioBenitez had received proper notice of his removal hearing under 8 U.S.C. 

§ 1229(a)(2).

Mauricio-Benitez appealed the IJ’s decision to the BIA, again arguing 

lack of notice of the removal hearing. The BIA first observed that MauricioBenitez’s NOH had been mailed to the address listed on the NTA and that the 

NOH had not been returned as undeliverable. It then dismissed the appeal on 

two alternative grounds: (1) Mauricio-Benitez had not provided sufficient 

evidence to rebut the presumption of delivery of the NOH; and (2) MauricioBenitez was “not entitled to actual notice of his hearing” because he had failed 

to correct the mistake in the address on the NTA with the immigration court. 

Mauricio-Benitez timely filed a petition for review.

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II.

Motions to reopen removal proceedings are disfavored, AltamiranoLopez v. Gonzales, 435 F.3d 547, 549 (5th Cir. 2006), and we review BIA denials 

of these motions under a “highly deferential abuse-of-discretion standard.” 

Hernandez-Castillo v. Sessions, 875 F.3d 199, 203 (5th Cir. 2017). We may 

only overturn a BIA decision if it is “capricious, without foundation in the 

evidence, or otherwise so irrational that it is arbitrary rather than the result 

of any perceptible rational approach[.]” Id. at 203–04 (quoting Gomez-Palacios 

v. Holder, 560 F.3d 354, 358 (5th Cir. 2009)). Under the substantial-evidence 

test, we may only overturn the BIA’s findings of fact if the evidence compels a 

contrary conclusion. Gomez-Palacios, 560 F.3d at 358. We review questions of 

law de novo. Id. We will focus our review on the BIA’s order, as we may only 

evaluate the IJ’s underlying decision if it influenced the BIA’s determination. 

Hernandez-Castillo, 875 F.3d at 204.

III.

Mauricio-Benitez advances two arguments in his petition for review: 

(1) the BIA erred in finding that he was not entitled to actual notice of his 

removal hearing; and (2) the BIA’s conclusion regarding the presumption of 

delivery of his NOH was contrary to this court’s and the BIA’s prior decisions. 

We will address each of his arguments in turn.

A.

Under 8 U.S.C. § 1229(a)(1), an alien who is subject to removal 

proceedings is entitled to written notice of “[t]he time and place at which the 

proceedings will be held.” 8 U.S.C. § 1229(a)(1)(G)(i). A written notice is 

deemed sufficient if the government “provide[s it] at the most recent address 

provided” to the immigration court by the alien. Id. § 1229a(b)(5)(A). However, 

if the alien fails to provide a mailing address in accordance with the statutory 

requirements, he is not entitled to written notice of his removal hearing. Id. 

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§ 1229a(5)(B). The alien must also be informed of the consequences of failing 

to appear after receiving notice, id. § 1229(a)(1)(G)(ii), including that the 

immigration judge may enter an in absentia order of removal against him. Id. 

§ 1229a(b)(5)(A). An in absentia removal order entered without proper notice 

to the alien may be rescinded at any time upon a motion to reopen, and it is 

the alien’s burden to demonstrate that he did not receive notice in accordance 

with § 1229(a). Id. § 1229a(b)(5)(C)(ii).

In concluding that Mauricio-Benitez was not entitled to actual notice of 

his removal hearing, the BIA observed that he had been personally served with 

a NTA emphasizing the significance of the mailing address requirements, but 

he still took no action to inform the immigration court about the spelling error. 

Mauricio-Benitez counters that the NTA and relevant regulations only 

required him to notify the immigration court of a change in address, not a 

correction to the address already on file. He further insists that even if he had 

such a duty to correct his address, he “had no reason to believe” the address on 

file was incorrect until he filed his FOIA request in 2017. He argues this even 

though the NTA itself, which he received in person, spelled the address 

incorrectly.

Our decision in Gomez-Palacios forecloses Mauricio-Benitez’s argument. 

See 560 F.3d 354. In that case, a NTA was personally served on the alien; the 

NTA detailed the alien’s obligations regarding his mailing address and the 

consequences of failing to appear at his removal hearing; and a NOH was 

mailed to the address provided by the alien on the NTA. Id. at 356–57. 

However, because the alien had relocated without updating his mailing 

address with the immigration court, he did not receive the NOH, and he was 

ordered removed in absentia when he failed to appear. Id. at 357. More than 

four years later, the alien moved to reopen the removal proceedings on the 

basis of lack of notice. Id.

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Upholding the BIA’s dismissal of the alien’s appeal, we concluded that 

“an alien’s failure to receive actual notice of a removal hearing due to his 

neglect of his obligation to keep the immigration court apprised of his current 

mailing address does not mean that the alien ‘did not receive notice’ under 

§ 1229a(b)(5)(C)(ii).” Id. at 360–61. Thus, because the lack of notice was a 

result of the alien’s failure to update his mailing address with the immigration 

court, his removal order would not be rescinded on that basis. Id. at 361.

In several unpublished cases, we have extended the rule in GomezPalacios to cases where the alien did not fail to inform the immigration court 

of a change in address, but instead failed to correct an error in the address 

listed on the NTA. See Mejia-Urbina v. Sessions, 712 F. App’x 469, 469–70 (5th 

Cir. 2018) (denying petition for review when the record contained no evidence 

that the alien had attempted to notify the immigration court that the address 

on his NTA was incorrect and asserted only that “an immigration officer wrote 

[his] address incorrectly”); Osorio-Hernandez v. Lynch, 602 F. App’x 194, 194

(5th Cir. 2015) (“[I]f the alien moves or discovers that an incorrect address has 

been provided, he has an obligation to provide the immigration court with his 

current address information.”). We do so again today. As we recognized in 

Mejia-Urbina and Osorio-Hernandez, an alien’s statutory obligation to keep 

the immigration court apprised of his current mailing address includes an 

obligation to correct any errors in that address listed on the NTA. Failure to 

receive notice of a removal hearing as a result of such an error is not grounds 

to reopen a removal proceeding or rescind an in absentia removal order.1

 

1 The Supreme Court’s recent decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018), 

does not impact this conclusion. As the Supreme Court emphasized, “[t]he narrow question 

in [that] case” was whether a NTA that does not specify the time or place of the removal 

hearing triggers the “stop-time rule” for purposes of a cancellation of removal. Id. at 2109–

10; see also id. at 2113 (“[T]he dispositive question in this case is much narrower[.]”). But 

cancellation and reopening are two entirely different proceedings under immigration law

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Here, Mauricio-Benitez was personally served with a NTA listing a 

mailing address that he contends was misspelled. Thus, he had notice of the 

error in his address upon receipt of the NTA on June 13, 2004—more than a 

month before the NOH was mailed to the misspelled address on July 21, 2004. 

The NTA warned Mauricio-Benitez of the importance of maintaining an 

accurate address with the immigration court, the consequences of failing to 

appear at his removal hearing, and that he would not be entitled to receive 

notice of his hearing if he did not provide an address at which he could be 

reached. Regardless of how the error in his address was introduced, MauricioBenitez had an obligation to correct that error with the immigration court. He 

failed to do so, and as a result he was not entitled to actual notice of his removal 

hearing. The BIA’s conclusion on this point was not wrong, much less 

“capricious” or “without foundation in the evidence,” so we must leave it 

undisturbed.

 

with different standards of review. Compare Tula-Rubio v. Lynch, 787 F.3d 288, 290–91 (5th 

Cir. 2015), with Hernandez-Castillo, 875 F.3d at 203–04.

Cancellation is a form of discretionary relief that an immigration court may award to 

aliens “who are subject to removal proceedings and have accrued 10 years of continuous 

physical presence in the United States[.]” Id. at 2109. An alien’s period of continuous 

physical presence for purposes of cancellation ends when the alien is served a NTA that fully 

complies with the statutory requirements. Id. The filing of the NTA, in turn, initiates 

removal proceedings against the alien, during which the alien may request cancellation. See 

8 C.F.R. § 1003.14(a); id. § 1003.13; 8 U.S.C. § 1229b(b). In contrast, it is only after these 

proceedings have concluded—which in some cases may be by the IJ’s issuance of an in 

absentia removal order—that an alien may file a motion to reopen the proceedings on one of 

the statutory grounds. See 8 U.S.C. § 1229a(b)(5)(A); id. § 1229a(b)(5)(C); id. § 1229a(c)(7).

Because the issues in this case pertain only to reopening, Pereira’s rule regarding 

cancellation is inapplicable. See, e.g., Ramat v. Nielsen, 317 F. Supp. 3d 1111, 1116–17 (S.D. 

Cal. 2018) (declining to read Pereira as applying more broadly than in stop-time rule 

cancellation cases); United States v. Ibarra-Rodriguez, No. CR-18-190-M, 2018 WL 4608503, 

at *3 (W.D. Okla. Sept. 25, 2018) (finding Pereira distinguishable because “the ‘stop-time rule’ 

[was] not at issue” in the case).

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B.

Even if Mauricio-Benitez had been entitled to actual notice of his

removal hearing, we agree with the BIA’s determination that he has not 

presented sufficient evidence to rebut the presumption that the NOH was 

properly delivered.2

On a motion to reopen for lack of notice, “the focus of the rescission 

inquiry . . . is on the actual receipt of the required notice and not whether the 

notice was properly mailed.” Gomez-Palacios, 560 F.3d at 360. To assist in 

this inquiry, when a NOH is served via certified mail, a strong presumption of 

effective service applies that may only be rebutted by the affirmative defense 

of nondelivery. Hernandez v. Lynch, 825 F.3d 266, 269 (5th Cir. 2016). If the 

NOH is instead served by regular mail, we still apply a presumption of effective 

delivery, but it is somewhat weaker than the certified-mail presumption. Id.; 

see also In re M-R-A-, 24 I. & N. Dec. 665, 672–73 (B.I.A. 2008) (noting that 

there is “slight” presumption of receipt of regular mail). In In re M-R-A-, the 

BIA set out a non-exhaustive list of factors courts may consider in determining 

whether this weaker presumption was rebutted, including “the [alien’s] 

affidavit;” “the [alien’s] actions upon learning of the in absentia order, and 

whether due diligence was exercised in seeking to redress the situation;” and 

“any other circumstances or evidence indicating possible nonreceipt of notice.” 

24 I. & N. Dec. at 674. The BIA emphasized the discretionary nature of the 

inquiry, stating that courts are not “obliged to grant a motion [to reopen] even 

if every type of evidence is submitted.” Id.

The BIA’s conclusion on this issue focused on the absence of evidence in 

the record to prove that Mauricio-Benitez actually resided at the West Belfort 

 

2 This alternative holding is not dicta. In this circuit, “alternative holdings are binding 

precedent and not obiter dicta.” Whitaker v. Collier, 862 F.3d 490, 496 n.14 (5th Cir. 2017) 

(quoting United States v. Bueno, 585 F.3d 847, 850 n.3 (5th Cir. 2009)).

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address when the NOH was mailed; that the immigration officers did in fact 

misspell his address; that a West Belford address identical to the claimed West 

Belfort address existed; or that the post office would not have delivered the 

NOH to West Belfort despite the error. Emphasizing that neither the NOH 

nor the in absentia order was returned as undeliverable, the BIA found that 

the presumption of delivery of the NOH was not rebutted.

Mauricio-Benitez insists that the BIA’s analysis misapplied our decision 

in Maknojiya v. Gonzales, 432 F.3d 588 (5th Cir. 2005), and the BIA’s own 

precedent in In re M-R-A-, 24 I. & N. Dec. 665. With respect to Maknojiya,

Mauricio-Benitez focuses on the following rule, summarized in Hernandez: 

“[W]hen service is furnished via regular mail, an alien’s statement in an 

affidavit that is without evidentiary flaw may be sufficient to rebut the 

presumption of effective service.” Hernandez, 825 F.3d at 269 (citing 

Maknojiya, 432 F.3d at 589–90). He argues that because he has submitted an 

affidavit stating that he did not receive the NOH, and because the BIA did not 

find an evidentiary flaw in the affidavit itself, he has rebutted the presumption 

of delivery on this basis alone. Mauricio-Benitez also contends that the BIA 

failed to consider his affidavit or his “due diligence after learning of his removal 

order” as required by In re M-R-A- and instead relied on factors not set out in 

In re M-R-A- such as his failure to corroborate his claims about living at the 

West Belfort address. We disagree with both arguments.

Beginning with Maknojiya, Mauricio-Benitez fails to acknowledge that 

the court there relied not only upon Maknojiya’s affidavit, but also on its 

finding that “the record [did] not indicate that Maknojiya was attempting to 

avoid the immigration proceedings” in granting the petition for review. 432 

F.3d at 589–90. Similarly, in Hernandez, even though the court found that the 

alien had submitted an affidavit without evidentiary flaw attesting to his 

nonreceipt of the NOH, the court considered other factors, including the alien’s 

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due diligence upon learning of the in absentia order, and, importantly, the 

credibility of the statements in the alien’s affidavit. 825 F.3d at 270–71. Thus, 

the BIA did not err in concluding that the presumption of delivery was not 

rebutted by Mauricio-Benitez’s affidavit alone.

In addition, the BIA’s analysis was consistent with its own decision in In 

re M-R-A-, which noted that courts “may consider a variety of factors”—“not 

limited to” those listed—to determine whether an alien has rebutted the 

presumption of delivery. 24 I. & N. Dec. at 674. The BIA considered 

permissible factors such as the fact that the NOH was not returned 

undelivered, see Hernandez, 825 F.3d at 270–71 (discussing this factor), and 

the credibility of the statements in Mauricio-Benitez’s affidavit. See id. at 270 

(“None of this is to say . . . that the BIA should not weigh the credibility of an 

affidavit in determining whether an alien has rebutted the presumption of 

notice. . . . [I]t should.”). In fact, the BIA’s analysis focused on the credibility 

of the affidavit—whether, given the lack of evidence in the record corroborating 

the West Belfort error, the statements in the affidavit were sufficient to rebut 

the presumption of delivery.

Finally, the BIA did not err in refusing to permit reopening despite the 

fact that Mauricio-Benitez sought counsel and filed his motion soon after 

discovering the in absentia order through a FOIA request. While the BIA 

granted the motion to reopen in In re M-R-A- in part on this basis, the alien 

there filed his motion less than a month after his failure to appear at his 

removal hearing. 24 I. & N. Dec. at 666; see also Hernandez, 825 F.3d at 267 

(NTA served via regular mail and motion to reopen filed within three years). 

In contrast, Mauricio-Benitez—despite having been personally served with a 

NTA informing him that he would receive a notice setting a hearing date and 

time—made no effort to correct his NTA, update his mailing address with the 

court when he moved six months after receiving the NTA, or otherwise follow 

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up on his immigration status for thirteen years. See Sosa-Perdomo v. Lynch, 

644 F. App’x 320, 321 (5th Cir. 2016) (considering nine-year delay before 

moving to reopen as evidence of a lack of diligence); Rahim v. Holder, 552 F. 

App’x 358, 360 (5th Cir. 2014) (same with eight-year delay). He cannot now 

complain that the BIA failed to grant him relief at the thirteenth hour.

Accordingly, the BIA’s determination that Mauricio-Benitez failed to 

rebut the presumption of delivery of regular mail was not “irrational” or 

“arbitrary.” As a result, we must uphold its dismissal of his appeal.

IV.

For the reasons discussed, Mauricio-Benitez’s petition for review is 

DENIED.

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