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Keywords

appealhearingaffidavitmotion

appealaffidavitmotioncredibility

Related Cases

Serrano v. U.S. Attorney Gen.

Facts

Selvin Eduardo Maldonado-Serrano petitioned for review of a BIA decision that denied his motion to rescind and reopen an in absentia removal order. He argued that he did not receive notice of his immigration proceedings and claimed that the BIA and Immigration Judge (IJ) misapplied the law and made erroneous factual findings. Maldonado-Serrano also filed a motion for a stay pending a decision from the BIA on another motion to reopen, asserting eligibility for cancellation of removal based on a recent Supreme Court decision.

Selvin Eduardo Maldonado-Serrano petitions for review of a decision of the Board of Immigration Appeals (BIA). He challenges the denial of a motion to rescind and reopen an in absentia removal order. Maldonado-Serrano argues that the BIA and Immigration Judge (IJ) erroneously rejected his claim that he did not receive notice of his immigration proceedings.

Issue

Did the BIA abuse its discretion in denying Maldonado-Serrano's motion to rescind and reopen his in absentia removal order?

Rule

The BIA's denial of a motion to reopen is reviewed under the 'highly deferential' abuse of discretion standard. The BIA applies a weaker presumption of receipt to a Notice to Appear sent by regular mail when the notice was properly addressed and mailed according to normal office procedures.

We review the BIA's denial of a motion to reopen under the 'highly deferential' abuse of discretion standard. Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009).

Analysis

The court found that the BIA did not abuse its discretion in rejecting Maldonado-Serrano's notice-based claim. The BIA's reliance on inconsistencies in his affidavit was given deference, and the BIA properly considered the change of address form he submitted. The court noted that the BIA did not improperly focus on the mailing of the hearing notice instead of his receipt of it, and concluded that Maldonado-Serrano was not diligent in waiting 14 years to file his motion to reopen.

The BIA did not abuse its discretion in rejecting Maldonado-Serrano's notice-based claim. We give deference to the BIA's reliance on inconsistencies in Maldonado-Serrano's affidavit. See Sharma, 729 F.3d at 411; Magdaleno de Morales v. INS, 116 F.3d 145, 147 (5th Cir. 1997); cf. Efe v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002) ('We give great deference to an immigration judge's decisions concerning an alien's credibility.').

Conclusion

The court denied the petition for review and the motion for a stay, affirming the BIA's decision.

Therefore, we DENY the petition for review. We also DENY Maldonado-Serrano's motion for a stay.

Who won?

The Board of Immigration Appeals (BIA) prevailed in the case because the court found no abuse of discretion in its decision to deny the motion to reopen.

The BIA did not abuse its discretion in rejecting Maldonado-Serrano's notice-based claim.

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