IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-60629

Summary Calendar

ERIKA JISELA YANEZ-PENA, also known as Erika Jisela Pena-Yanez,

Petitioner

v.

JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,

Respondent

Petitions for Review of an Order of the

Board of Immigration Appeals

BIA No. A088 349 634

Before REAVLEY, JONES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Erika Jisela Yanez-Pena petitions for review of the Board of Immigration 

Appeals’ (BIA) dismissal of her appeal from the Immigration Judge’s (IJ) order 

denying her motion to reopen and rescind her in absentia removal order, in 

which she asserted that she had not received notice of her removal proceedings. 

We review the BIA’s decision under a deferential abuse of discretion standard, 

overturning only if it was not “capricious, without foundation in the evidence, 

 

* 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

November 1, 2018

Lyle W. Cayce

Clerk

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No. 17-60629

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

perceptible rational approach.” Hernandez-Castillo v. Sessions, 875 F.3d 199, 

203 (5th Cir. 2017) (internal quotation marks and citation omitted).

Yanez-Pena contends that the BIA erred as a matter of law and fact in 

denying her motion to reopen because she established that she had not received 

notice of her removal hearing. She contends that the BIA ignored relevant 

caselaw and did not consider relevant factors in determining that she had not 

rebutted the presumption of effective service applicable when notice is sent via 

regular mail.

Substantial evidence supports the BIA’s determination that the hearing 

notice was served on Yanez-Pena via regular mail to the admittedly correct 

address that she provided to the immigration court. See Chun v. INS, 40 F.3d 

76, 78 (5th Cir. 1994). Thus, a presumption of effective service applies, albeit 

a weaker presumption than that applicable to service by certified mail. See

8 U.S.C. §§ 1229(a)(2), 1229(c), 1229a(b)(5)(A); see also Hernandez v. Lynch, 

825 F.3d 266, 269 (5th Cir. 2016); Matter of M-R-A-, 24 I. & N. Dec. 665, 672-

73 (BIA 2008). Yanez-Pena contends that her affidavit and the affidavit of her 

brother denying receipt of the hearing notice were alone sufficient to overcome 

that presumption. The IJ and BIA noted that two hearing notices and the in 

absentia removal order were mailed to her correct address and that none of 

those documents were returned as undeliverable, providing evidence that they 

were, in fact, delivered. See Hernandez, 825 F.3d at 271. The IJ correctly 

weighed the credibility of the affidavits, finding that their claims that they did 

not receive any of the three documents mailed to Yanez-Pena’s address of 

record were implausible and therefore not credible. See Hernandez, 825 F.3d 

at 270; 8 U.S.C. § 1158(b)(1)(B)(iii). The record does not compel the conclusion 

that the affidavits were credible, and so under the substantial evidence 

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standard, this court may not reverse this factual determination. Chun, 40 F.3d 

at 78.

The record establishes that the BIA and IJ considered the proper factors, 

such as the fact that there was no evidence that the hearing notice had been 

returned as undeliverable. See Matter of M-R-A-, 24 I. & N. Dec. at 674. The 

only evidence presented on these factors by Yanez-Pena was her affidavit and 

that of her brother regarding no receipt of notice. The statements of her 

counsel regarding other factors in her motion to reopen and brief are not 

evidence. See Skyline Corp. v. NLRB, 613 F.2d 1328, 1337 (5th Cir. 1980) 

(“Statements by counsel in briefs are not evidence.”).

The argument that the IJ ignored this court’s decision in Maknojiya v. 

Gonzales, 432 F.3d 588 (5th Cir. 2005) lacks merit. In Maknojiya, we

remanded to the BIA because the IJ incorrectly applied the certified mail 

presumption of delivery standard to a hearing notice sent by regular mail and 

disregarded affidavits from the alien and his counsel. 432 F.3d at 589-90. In 

Yanez-Pena’s case, the IJ and the BIA applied the correct presumption of 

delivery for regular mail, and they considered the affidavits from Yanez-Pena 

and her brother, concluding that they were not credible.

Yanez-Pena has not demonstrated that the BIA’s denial of her motion to 

reopen constituted an abuse of discretion. Hernandez-Castillo, 875 F.3d at 203. 

Accordingly, the petition for review is DENIED.

Yanez-Pena, by a petition for review timely received in this court on 

January 18, 2018, also seeks review of the BIA’s denial of her motion to 

reconsider. The BIA did not abuse its discretion by denying her motion to 

reconsider. See Zhao v. Gonzales, 404 F.3d 295, 301 (5th Cir. 2005). 

Accordingly, the second petition for review is DENIED.

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