IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-60768

ROSA MARIA NAVARRETE-LOPEZ, 

 Petitioner

v.

WILLIAM P. BARR, U. S. ATTORNEY GENERAL, 

 Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

Before HIGGINBOTHAM, SMITH, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

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. 

United States Court of Appeals

Fifth Circuit

FILED

April 1, 2019

Lyle W. Cayce

Clerk

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BACKGROUND1

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-ofaddress 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.

 

1 The following facts are undisputed unless otherwise specified.

2 Navarette-Lopez also received the NTA orally in Spanish.

3 The NOH bears “May 13, 2004” after the word “Date” at the top of the page. In a 

section at the bottom of the page entitled “Certificate of Service,” the NOA bears a 

handwritten date of “6-30-04.” Neither party has explained this six-week lag. Although the 

respondent cites June 30 as the send date and the petitioner cites May 13, this distinction is 

immaterial to the ultimate issue.

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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 I130 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 NavarreteLopez 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 

 

4 The FOIA request is not in the record but the respondent does not dispute its 

existence. 

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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 OF REVIEW

We review the denial of a motion to reopen under “a highly deferential 

abuse-of-discretion standard.” Garcia-Nuñez v. Sessions, 882 F.3d 499, 505 

(5th Cir. 2018). The BIA abuses its discretion “when it issues a decision that is 

capricious, irrational, utterly without foundation in the evidence, based on 

legally erroneous interpretations of statutes or regulations, or based on 

unexplained departures from regulations or established policies.” BarriosCantarero v. Holder, 772 F.3d 1019, 1021 (5th Cir. 2014). The BIA’s factual 

findings are reviewed for substantial evidence and may not be overturned 

“unless the evidence compels a contrary conclusion.” Torres Hernandez v. 

Lynch, 825 F.3d 266, 268 (5th Cir. 2016) (quotation omitted). 

DISCUSSION

In ruling on a motion to reopen, “the focus is whether the alien actually 

received the required notice and not whether the notice was properly mailed.” 

Garcia-Nuñez, 882 F.3d at 506 (quotation omitted). The court nevertheless 

presumes “that public officials, including Postal Service employees, properly 

discharge their duties.” Maknojiya v. Gonzales, 432 F.3d 588, 589 (5th Cir. 

2005). There is a “strong presumption of effective service” when the notice is 

sent by certified mail. Torres Hernandez, 825 F.3d at 269 (quotation omitted). 

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The presumption is “weaker” when notice is sent by regular mail, as it was 

here. Id.

Under BIA precedent, “all relevant evidence,” both direct and 

circumstantial, should be considered to determine whether the petitioner has 

overcome the weaker presumption of effective service, and an “inflexible and 

rigid application of the presumption of delivery is not appropriate . . . .” Matter 

of M-R-A-, 24 I. & N. Dec. 665, 674–76 (BIA 2008). The BIA has outlined the 

following list of factors to consider in reaching that determination:

(1) the respondent’s affidavit; 

(2) affidavits from family members or other individuals who are 

knowledgeable about the facts relevant to whether notice was 

received; 

(3) the respondent’s actions upon learning of the in absentia order, 

and whether due diligence was exercised in seeking to redress the 

situation; 

(4) any prior affirmative application for relief, indicating that the 

respondent had an incentive to appear; 

(5) any prior application for relief filed with the Immigration Court 

or any prima facie evidence in the record or the respondent’s 

motion of statutory eligibility for relief, indicating that the 

respondent had an incentive to appear; 

(6) the respondent’s previous attendance at Immigration Court 

hearings, if applicable; and 

(7) any other circumstances or evidence indicating possible 

nonreceipt of notice.

Id. at 674. That list is, importantly, not exhaustive. Id. (“We emphasize that 

these are just examples of the types of evidence that can support a motion to 

reopen. Immigration Judges are neither required to deny reopening if exactly 

such evidence is not provided nor obliged to grant a motion, even if every type 

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of evidence is submitted. Each case must be evaluated based on its own 

particular circumstances and evidence.”). 

The BIA, applying the M-R-A- factors and looking to the “totality of the 

circumstances,” did not abuse its discretion in determining that NavarreteLopez failed to overcome the weaker presumption of effective service. As the

BIA observed, the NOH was not returned as undeliverable and NavarreteLopez did not indicate an incentive to appear by submitting a prior affirmative 

application for relief. The BIA’s conclusion that Navarrete-Lopez 

demonstrated a lack of “due diligence” is also supported by the record.5

Navarrete-Lopez urges that it was error for the BIA to highlight the lack 

of evidence corroborating her daughter’s residency at the claimed address 

during the relevant time period. To be sure, under our precedent, affidavits 

that lack any evidentiary flaw—despite their self-serving nature—may be 

taken as competent, standalone evidence to support a claim that notice was 

 

5 There appears to be some tension in the case law regarding how to assess “due 

diligence.” Under the BIA’s own precedent in M-R-A-, the date that the removal order is 

discovered—not the date the removal order is entered—starts the due-diligence clock. 24 I. 

& N. Dec. at 674 (naming a relevant factor as “the respondent’s actions upon learning of the 

in absentia order, and whether due diligence was exercised in seeking to redress the 

situation”) (emphasis added). Our court has recognized that timeframe. See, e.g., MauricioBenitez v. Sessions, 908 F.3d 144, 151 (5th Cir. 2018) (“[T]he 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.”) (emphasis added). But 

we have also affirmed the BIA’s due-diligence finding on the basis of a petitioner’s actions (or 

inaction) from the date of receiving the NTA to the date of filing the motion to reopen. See, 

e.g., id. (“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 [a 

spelling error on] his NTA, update his mailing address with the court when he moved six 

months after receiving the NTA, or otherwise follow up on his immigration status for thirteen 

years.”) (emphasis added). And we have affirmed due-diligence findings based on delay 

between the removal hearing and the motion to reopen. See, e.g., Sosa-Perdomo v. Lynch, 644 

F. App'x 320, 321 (5th Cir. 2016) (“[T]he BIA did not misapply [M–R–A–] by taking into 

account Sosa–Perdomo’s lack of diligence in failing to file her motion to reopen until over nine 

years after she was ordered removed in absentia.”) (emphasis added). We need not resolve 

this thicket today because in this case, under any measure, the BIA would not have abused 

its discretion in making the due-diligence finding.

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never received. Maknojiya, 432 F.3d at 590 (“In the case of failed mail delivery 

when regular mail is used, the only proof is the alien’s statement that he or 

she did not receive notice.”) (citation omitted); see also Torres Hernandez, 825 

F.3d at 269 (“[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.”); Settim v. Gonzales, 171 F. App’x 436, 437 

(5th Cir. 2006) (“Where the correspondence is sent by regular mail, and where 

there is no other evidence that the petitioner was attempting to avoid 

proceedings, the petitioner’s statement that he or she did not receive the 

correspondence is sufficient evidence that mail delivery failed.”); BarahonaCardona v. Holder, 417 F. App’x 397, 399 (5th Cir. 2011) (“[A]n affidavit of nonreceipt can be sufficient to rebut the weaker presumption of delivery that 

arises under regular mail.”). But we note that M-R-A- permits consideration of 

“other circumstances or evidence indicating possible nonreceipt of notice.” 24 I 

& N. Dec. at 674. At its core, the M-R-A- inquiry is fact-specific, flexible, and 

multi-factorial. In this case, there were various circumstances—including no 

non-deliverable return, no prior affirmative applications for relief, and lack of 

due diligence—weighing in favor of the presumption of receipt. Because the 

BIA reached a final determination, properly, based on the “totality of the 

circumstances,” and under our highly deferential standard of review, we find 

no abuse of discretion and accordingly DENY the petition.

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