IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-60416

Summary Calendar 

CONCEPCION GONZALEZ-DE MENDOZA, 

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. A073 241 950

Before JONES, SMITH, and BARKSDALE, Circuit Judges. 

PER CURIAM:*

Concepcion Gonzalez-De Mendoza, a native and citizen of Mexico,

petitions for review of the Board of Immigration Appeals (BIA) decision 

affirming the immigration judge’s (IJ) denial of her January 2015 motion to 

reopen her removal proceedings and to rescind her removal order entered in 

absentia in October 1994. An immigration court’s denial of a motion to reopen 

is reviewed “under a highly deferential abuse-of-discretion standard”. Gomez-

 

* 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

August 8, 2017

Lyle W. Cayce

Clerk

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No. 16-60416

2 

Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009). The factual findings are 

reviewed for substantial evidence. Ojeda-Calderon v. Holder, 726 F.3d 669, 

672–73 (5th Cir. 2013); Lopez-Dubon v. Holder, 609 F.3d 642, 645 (5th Cir. 

2010). 

Gonzalez contends the BIA abused its discretion in denying her motion 

to reopen and rescind her in absentia deportation order by finding the hearing 

notice was personally served. She contends the BIA ignored an absence of

indication that she actually received notice of the rescheduled hearing on 31 

October 1994. Gonzalez also contends the BIA abused its discretion by 

ignoring that she did not receive notice of the hearing by certified mail. She 

further asserts the BIA abused its discretion by failing to consider the factors 

outlined in Matter of M-R-A-, 24 I. & N. Dec. 665, 674 (BIA 2008).

Under the rules applicable to immigration cases commenced prior to 30 

September 1996, in absentia deportation orders may be rescinded only if the 

alien files a motion to reopen within 180 days after the date of the order of 

deportation, showing exceptional circumstances for her failure to appear, or at 

any time files a motion to reopen demonstrating that she did not receive notice 

of the hearing. 8 U.S.C. § 1252b(c)(3) (West 1993) (repealed 30 Sept. 1996); see 

also Ojeda-Calderon, 726 F.3d at 673 (“Because Ojeda’s immigration 

proceedings were initiated prior to the 1996 amendments to the INA, we must 

apply the notice requirements set forth in former INA § 242B.”). Notice may 

be by personal service or certified mail. 8 U.S.C. § 1252b(a)(2)(A) (West 1993) 

(repealed) (requiring the INS to provide written notice of the deportation 

hearing “in person to the alien (or, if personal service is not practicable, written 

notice shall be given by certified mail to the alien or to the alien’s counsel of 

record, if any)”); Ojeda-Calderon, 726 F.3d at 673. 

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For a motion to reopen, we focus on whether the alien actually received 

the required notice. Ojeda-Calderon, 726 F.3d at 673. The alien bears the 

burden to demonstrate she did not receive notice. 8 U.S.C. § 1252b(c)(3) (West 

1993); Ojeda-Calderon, 726 F.3d at 673. 

The IJ and the BIA determined Gonzalez was personally served with the 

notice of hearing when she appeared in immigration court on 28 September 

1994, based on the notice in the record on which the clerk noted personal 

service. The IJ noted Gonzalez had not contended she was not personally 

served with this hearing notice. The BIA presumed the clerk who noted 

Gonzalez was personally served on 28 September properly discharged his 

duties. Substantial evidence in the record supports the finding that Gonzalez 

was personally served with the notice of hearing. See Lopez-Dubon, 609 F.3d 

at 647. Accordingly, the BIA did not abuse its discretion in affirming the IJ’s 

denial of her motion to reopen and dismissing her appeal. See Gomez-Palacios, 

560 F.3d at 358, 361.

Gonzalez’ reliance on M-R-A- is mistaken. In M-R-A-, the BIA sustained 

the alien’s appeal, finding the alien had overcome the “weak” presumption that 

he had received a notice of hearing sent to him by regular mail. 24 I. & N. Dec. 

at 676. Needless to say, because substantial evidence supports the BIA’s 

finding Gonzalez was personally served with notice informing her of the 31 

October 1994 hearing, M-R-A- and its discussion of what evidence can be used 

to overcome the presumption of delivery by regular mail does not apply. 

DENIED. 

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