IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-60221

Summary Calendar

MEHNAZ RAHIM, also known as Mehnaz Baderpura,

Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A079 005 293

Before KING, DeMOSS, and GRAVES, Circuit Judges.

PER CURIAM:*

Pakistani citizen Mehnaz Rahim petitions for review of the order of the 

Board of Immigration Appeals (BIA) denying her motion to reopen her removal 

proceeding. Rahim was ordered removed in absentia in 2004. She argues that 

the BIA erred by requiring her to produce the affidavits of other people with 

knowledge as to whether she received notice of her removal hearing and by 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 17, 2014

Lyle W. Cayce

Clerk

 

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requiring her to show due diligence in attempting to ascertain the status of her 

removal proceeding.

The BIA’s factual findings are reviewed under a substantial evidence 

test, meaning that we will not overturn the BIA’s factual findings unless the 

evidence compels a contrary conclusion. Chun v. INS, 40 F.3d 76, 78 (5th Cir. 

1994). A credibility finding by the BIA will be reversed “unless the evidence is 

so compelling that no reasonable fact finder could fail to find otherwise.” Wang 

v. Holder, 569 F.3d 531, 538 (5th Cir. 2009) (internal quotation marks and 

citation omitted).

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

abuse-of-discretion standard.” Gomez-Palacios v. Holder, 560 F.3d 354, 358 

(5th Cir. 2009). The BIA’s decision will be upheld as long as it is not 

“capricious, racially invidious, utterly without foundation in the evidence, or 

otherwise so irrational that it is arbitrary rather than the result of any 

perceptible rational approach.” Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 

2006) (internal quotation marks and citation omitted). “[M]otions to reopen 

deportation proceedings are disfavored, and the moving party bears a heavy 

burden.” Altamirano-Lopez v. Gonzales, 435 F.3d 547, 549-50 (5th Cir. 2006) 

(internal quotation marks and citation omitted).

Pursuant to 8 U.S.C. § 1229(a), a notice to appear or notice of a change 

in time or place of removal proceedings should be personally served on the alien 

but may be mailed to the alien or her attorney when personal service is not 

feasible. § 1229(a)(1), (2). Any alien who fails to appear at a removal 

proceeding “shall be ordered removed in absentia,” provided the Government 

shows by “clear, unequivocal, and convincing evidence” that the alien is 

removable and that the alien, or her attorney, was provided written notice as 

required by § 1229(a). § 1229a(b)(5)(A). To rescind such an order more than 

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180 days after it is entered, the alien must demonstrate, inter alia, that she 

did not receive notice pursuant to § 1229(a). § 1229a(b)(5)(C)(ii). 

To the extent Rahim contends that the BIA erred by requiring as a 

matter of law affidavits from others and a showing of diligence, this contention 

is incorrect. Although those factors were addressed in the administrative 

orders in Rahim’s case, both factors were addressed along with the other 

factors set out in relevant caselaw. 

In her affidavit, Rahim acknowledged that her correct address was 5010 

Grove West Blvd., Apt. # 803 in Stafford, Texas. This is the address that 

appears on the notice of hearing. Rahim was married and living with her 

husband at the Grove West Blvd. address in 2003, and she was married to her 

husband when she applied for adjustment of status based on his adjustment to 

permanent resident status. Yet Rahim’s husband did not provide an affidavit 

in support of Rahim’s motion to reopen. 

Rahim swore in the affidavit that she was notified by her current 

attorney of the order of removal in absentia, yet she did not swear that she 

never received a copy of the order of removal. She also indicated that counsel 

told her that he had reviewed the file and that it contained an unopened notice 

sent to her and returned. To the extent Rahim repeated what she was told by 

counsel, her affidavit is based on hearsay and not on personal knowledge. See

Milanzi v. Holder, 397 F. App’x 984, 986 (5th Cir. 2010). Moreover, counsel did 

not indicate during the administrative proceeding that he examined the file 

and discovered an unopened envelope containing a notice of hearing, and the 

record does not contain any evidence corroborating the allegation that there 

was an unopened or returned notice of hearing in Rahim’s file. Counsel’s 

statement in Rahim’s brief to this court that he noticed the envelope containing 

the unopened envelope containing the notice of hearing when he reviewed 

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Rahim’s file during administrative proceedings was not before the BIA. This 

court may not consider evidence that is not contained in the administrative 

record. 8 U.S.C. § 1252(b)(4)(A). 

Rahim was told in her notice to appear on May 16, 2003, that she was in 

removal proceedings and that a hearing would be scheduled, and she also was 

told that the failure to appear at the scheduled hearing could result in her 

being ordered removed in absentia. The order of removal was issued in April 

2004. Rahim retained counsel in July 2012, evidently to file the motion to 

reopen and an application for an adjustment of status based on her husband’s 

status. Rahim evidently waited nine years after the NTA was served, and eight 

years after she was ordered removed in absentia, to inquire about the status 

of her case.

Rahim’s husband began the process of adjusting his status in 2006, when 

his employer filed the petition on his behalf, and he obtained permanent

resident status in 2011. The record does not suggest that she had a motive to 

appear at her removal hearing based on her husband’s immigration status.

The BIA’s implicit adverse credibility finding is supported by the record. 

See Wang, 569 F.3d at 538. Under the factors listed in Matter of M-R-A-, 24 I. 

& N. Dec. 665, 674 (BIA 2008), the denial of the motion to reopen was not an 

abuse of discretion. See Singh, 436 F.3d at 487; Matter of M-R-A-, 24 I. & N. 

Dec. at 674.

PETITION FOR REVIEW DENIED.

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