Case: 09-60577     Document: 00511247789          Page: 1    Date Filed: 09/29/2010




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

                                                 FILED
                                                                        September 29, 2010
                                     No. 09-60577
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

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 Perez-
Marquin 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.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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provisions of former 8 U.S.C. § 1252b (1993) (repealed 1996).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, 

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provided that a deportation order entered in absentia could be rescinded upon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

, 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, 

, 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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                                 No. 09-60577

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 

.
      We lack jurisdiction to consider the arguments that Perez-Marquin has
raised for the first time on appeal. See Roy v. Ashcroft, 

, 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 

.
      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, 

, 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

. His petition for review is DENIED.



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