IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-60577

Summary Calendar

JOFFRE JORGE PEREZ-MARQUIN,

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. A072-406-497

Before JONES, Chief Judge, and GARZA and BENAVIDES, Circuit Judges.

PER CURIAM:

*

Joffre Jorge Perez-Marquin, a native and citizen of Ecuador, petitions for

review of a final order of the Board of Immigration Appeals (BIA) dismissing his

appeal of the Immigration Judge’s (IJ) denial of his motion to reopen his 1993

deportation proceedings. After notice was sent to the address provided by PerezMarquin by certified mail, Perez-Marquin failed to appear for his deportation

hearing in March 1993 and was ordered deported in absentia. He filed a motion

to reopen in January 2008.

United States Court of Appeals

Fifth Circuit

F I L E D

September 29, 2010

Lyle W. Cayce

Clerk

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.

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No. 09-60577

Because Perez-Marquin’s deportation proceedings became final in 1993,

prior to the April 1, 1997, effective date of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996, the proceedings were subject to the

provisions of former 8 U.S.C. § 1252b (1993) (repealed 1996). See Pub. L. No.

104-208, title III, div. C, § 309(c), 110 Stat. 3009-625 (Sept. 30, 1996);

Williams-Igwonobe v. Gonzales, 437 F.3d 453, 455 (5th Cir. 2006). Section 1252b

provided that a deportation order entered in absentia could be rescinded upon

a motion to reopen filed at any time “if the alien demonstrate[d] that the alien

did not receive notice in accordance with subsection (a)(2) of this section . . . .”

§ 1252b(c)(3)(B) (repealed 1996). The BIA found that the notice provided

Perez-Marquin, however, was sufficient because the Immigration Court mailed

the notice of hearing by certified mail to the address provided by Perez-Marquin

and because he was personally served with an Order to Show Cause that warned

him of the consequences for failing to provide a current address to the

Immigration Court.

Perez-Marquin argues that the BIA abused its discretion in dismissing his

appeal. Perez-Marquin contends that the BIA applied the incorrect legal

standard when it failed to require “actual notice” of the hearing. In Maknojiya

v. Gonzales, 432 F.3d 588, 589 (5th Cir.2005), this court reiterated the

admonitions of Matter of Grijalva, 21 I. & N. Dec. 27, 37-38 (BIA 1995), that a

strong presumption of effective service applies where notice was sent via

certified mail and that the presumption “may be overcome only by the

affirmative defense of nondelivery or improper delivery by the Postal Service.”

As the BIA applied this standard in its analysis, Perez-Marquin has failed to

show an error of law in the BIA’s analysis, even under de novo review. See

Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009).

Perez-Marquin additionally argues that the BIA’s factual conclusions were

not supported by the evidence because he filed an affidavit that contradicted the

BIA’s factual conclusions. Perez-Marquin’s affidavit is ambiguous evidence at

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the best. In it, Perez-Marquin avers that he came to the United States in

January 1991, was apprehended by former Immigration and Naturalization

Service, and was released when a family friend paid the bond for his release. In

the next paragraph, Perez-Marquin states, without providing a date, that he

went to live with the friend and remained at that address for approximately four

months. As proof that Perez-Marquin had not moved before notice of the

hearing was mailed to him at the friend’s address in 1993, the affidavit fails to

compel a conclusion contrary to that of the BIA. See Gomez-Palacios, 560 F.3d

at 358.

We lack jurisdiction to consider the arguments that Perez-Marquin has

raised for the first time on appeal. See Roy v. Ashcroft, 389 F.3d 132, 137 (5th

Cir. 2004). Specifically, Perez-Marquin argues that there is no proof that the

Office of the IJ mailed the notice of the hearing, that the Certified Mail receipt

does not reflect that the notice was actually mailed, that the IJ relied on an

envelope that did not reflect mailing prior to the deportation hearing, and that

INS violated his due process rights by holding an in absentia hearing where he

did not receive actual notice. As the BIA did not have the opportunity to

consider these arguments in the first instance, this court lacks jurisdiction to

consider them. See Roy, 389 F.3d at 137.

We decline to consider Perez-Marquin’s claim, raised for the first time

before this court in his reply brief, that the administrative record, including

copies of the relevant mailing envelopes, was not available to him when he

prepared his appeal of the IJ’s order to the BIA. See United States v.

Aguirre-Villa, 460 F.3d 681, 683 n.2 (5th Cir. 2006).

Perez-Marquin has failed to show that the BIA’s decision is “capricious,

without foundation in the evidence, or otherwise so irrational that it is arbitrary

rather than the result of any perceptible rational approach.” See

Gomez-Palacios, 560 F.3d at 361. His petition for review is DENIED.

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