Case: 09-60473     Document: 00511094273          Page: 1    Date Filed: 04/28/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            April 28, 2010
                                     No. 09-60473
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

MIRNA MENDEZ-SANDOVAL; AMADEO MENDEZ-SANDOVAL; ROXANA
ELIZABET MENDEZ-SANDOVAL; KEVIN ORLANDO MENDEZ-CALDERON,

                                                   Petitioners

v.

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

                                                   Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A098 488 339
                                BIA No. A098 488 340
                                BIA No. A098 488 341
                                BIA No. A098 488 342


Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Mirna Mendez-Sandoval, Amadeo Mendez-Sandoval, Roxana Elizabet
Mendez-Sandoval, and Kevin Orlando Mendez-Calderon (petitioners), all natives
and citizens of El Salvador, were ordered removed in absentia in 2005. They




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-60473    Document: 00511094273 Page: 2         Date Filed: 04/28/2010
                                 No. 09-60473

petition for review of a Board of Immigration Appeals (BIA) order dismissing
their appeal of the denial of their motion to reopen removal proceedings.
      Because the BIA expressly adopted the reasoning of the immigration judge
(IJ), we review both the IJ and BIA decisions. Gomez-Palacios v. Holder, 

, 358 (5th Cir. 2009) (citing Ontunez-Tursios v. Ashcroft, 

,
348 (5th Cir. 2002)); Efe v. Ashcroft, 

, 903 (5th Cir. 2002). “We
review the denial of a motion to reopen for an abuse of discretion.” Galvez-
Vergara v. Gonzales, 

, 801 (5th Cir. 2007) (citing Williams-Igwonobe
v. Gonzales, 

, 455 (5th Cir. 2006)). The BIA abuses its discretion
only if its decision is capricious, arbitrary, racially invidious, without foundation
in the record, or irrational. Singh v. Gonzales, 

, 487 (5th Cir. 2006)
(citing Zhao v. Gonzales, 

, 301 (5th Cir. 2005)).
      As a preliminary matter, the notices to appear (NTA) that were personally
served on each petitioner were not defective. An NTA is sufficient if it includes
the nature of the proceedings, the legal authority under which the proceedings
are conducted, the conduct alleged to be illegal, the charges, and the statutory
basis for the charges. Chambers v. Mukasey, 

, 448–49 (5th Cir.
2008) (citing 8 U.S.C. § 1229(a)(1)). The NTAs contained this information; they
were not required to contain the date and time of the removal hearing—a notice
that fails to include such date and time is not statutorily defective. Gomez-

.
      Petitioners contend they did not receive the subsequent notices of hearing,
which were served by regular mail at the address petitioners provided. In
Maknojiya v. Gonzales, 

, 589–90 (5th Cir. 2005), our court held that
when, as here, written notice is sent by regular mail, the alien may prove that
he did not receive the notice by his own statement in an affidavit. (In contrast,
where certified mail is used, there is a presumption of effective service that may
be overcome only by “substantial and probative evidence such as documentary
evidence from the Postal Service, third party affidavits, or other similar evidence

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                                No. 09-60473

demonstrating that there was improper delivery or that nondelivery was not due
to the respondent’s failure to provide an address where he could receive mail”.

(quoting In re Grijalva, 21 I&N Dec. 27, 37–38 (BIA 1995), superseded
by statute on other grounds, 8 U.S.C. § 1229(a)(1)).)
      The BIA noted that each petitioner failed to submit: an affidavit stating
that the mailed notice of hearing was not received; a sworn statement in the
motion to reopen, which was filed by and through counsel; an application for
relief from removal; or any evidence to suggest that any such relief was
available. In sum, the BIA did not abuse its discretion in denying the motion to
reopen.
      DENIED.




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