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* Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 94-40750
Summary Calendar
JOSE NICOLAS THOMPSON,
Petitioner,
VERSUS
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
INS #A 70 526 151
(March 29, 1995)
Before JONES, BARKSDALE and BENAVIDES, Circuit Judges.
PER CURIAM:*
Jose Nicolas Thompson ("Thompson") appeals an order of
deportation entered against him by the Board of Immigration
Appeals ("BIA"). Finding that the BIA failed to consider the
affidavit or

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1Indeed, Thompson asserts in his motion to reopen and in his
brief on appeal that he turned himself in believing he could get
a favorable ruling on a request for suspension.
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sworn statement of Thompson as evidence, we vacate the decision
of the BIA and remand for necessary proceedings.
FACTS AND PROCEDURAL HISTORY
Thompson is a native and citizen of the Philippines who has
resided in the United States for almost 12 years. He entered this
country legally with a non-immigrant student visa in November,
1982. This visa expired in August, 1985. Thompson is married to
a lawful permanent resident of the United States, and they have two
United States citizen children. Because he has no criminal record
and because of his family and long residence, it would appear that,
upon proper application, Thompson is eligible to be considered for
a suspension of deportation under § 244(a)(1) of the Immigration
and Nationality Act ("INA"). 8 U.S.C. § 1254(a)(1).1
On July 25, 1991, Thompson voluntarily surrendered himself to
the Immigration and Naturalization Service ("INS"). On August 6,
1991, an Order to Show Cause ("OSC") charging Thompson with
deportability was prepared and mailed to him certified mail, return
receipt requested, at the address he provided to the INS: 9319
Lynchester Drive, Houston, Texas, 77083. On August 8, 1991,
Thompson received the OSC. The OSC of August 6, 1991 did not set
a hearing date but indicated that the hearing would be set and
notice given at a later date.

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It would appear from a file copy in the Office of the
Immigration Judge that, on August 7, 1991, a notice that the
hearing would take place on August 29, 1991 was mailed to Thompson.
According to such copy, the information was sent to the same
address as the one the OSC was sent to, but was not mailed
certified mail, return receipt requested. Thompson never appeared
at the hearing, and the Immigration Judge ("IJ") ordered him
deported in absentia. The written decision of the IJ was sent to
Thompson at the same address, and he received it.
On September 11, 1991, Thompson filed a motion with the IJ to
reopen the deportation proceedings. In this motion, Thompson
argued that he never received notice of the hearing. The motion
was accompanied by a "Verification," in which Thompson stated under
oath that "every statement of fact contained [in the motion], not
attributed to others, is within affiant's knowledge, true and
correct." On September 16, 1991, the INS advised the IJ that it
did not oppose the motion.
On October 4, 1991, the IJ denied the motion, stating:
On August 7, 1991, the Order to Show Cause was filed with the
court, and on that same day, the court sent notice to
respondent that a master calendar hearing would be held on his
case on August 29, 1991. The notice was sent to 9310
Lynchester Drive, Houston, TX 77083, and was never returned to
the court by the postal service, thus justifying an inference
that it had been duly received by respondent. On August 8,
1991, respondent signed a certified mail receipt acknowledging
receipt of the Order to Show Cause, which had also been mailed
to the Lynchester Drive address.
Thompson appealed the IJ's decision to the BIA. Among other
issues, Thompson argued that the mailing address alleged in the
decision of the IJ was incorrect, as Thompson lived at 9319

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Lynchester, not 9310 Lynchester. On May 5, 1994, the BIA dismissed
the appeal, stating:
Notice of the hearing in question, dated August 7, 1991, was
mailed to the respondent at his last known address in Houston,
Texas. It was the same address listed in the Order to Show
Cause, and the Record of Deportable Alien, and the same
address at which the respondent signed the certified mail
receipt for his Order to Show Cause on August 8, 1991. The
notice was not returned by the postal authorities as
undeliverable. We also note that the immigration judge's
decision was mailed to the same address, and in response the
respondent filed his motion to reopen soon after. From these
facts, it may be presumed that the hearing notice was
delivered. In response, we have only a vague assertion that
the respondent had no notice of the hearing, with no
explanation from the respondent why he would not have received
the notice if provided to his correct address.
The BIA also stated:
In fact, neither the motion to reopen nor the appeal
includes any affidavit or other statement from the respondent
stating that he in fact did not receive any hearing notice and
was unaware of the hearing date. We only have before us
counsel's statements in the motion and on appeal to this
effect. Counsel's statements in a brief, motion, or Notice of
Appeal do not constitute evidence and carry no evidentiary
weight.
Thompson appeals.
ANALYSIS
Although the standard of review applicable to the issue of
notice has never been examined by this Circuit, we defer to the
factual findings of the BIA and reverse only if the BIA's factual
conclusion is not supported by substantial evidence. Cf. Castillo-
Rodriguez v. I.N.S., 929 F.2d 181, 184 (5th Cir. 1991) ("We review
the Board's factual finding that an alien is not eligible for
consideration for asylum only to determine whether it is supported

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by substantial evidence."). However, "[w]e accord deference to the
Board's interpretation unless there are compelling indications that
it is wrong." Id.
A significant factor the BIA relied on in finding that
Thompson had received notice was that Thompson never presented an
affidavit stating that he did not receive the notice and was
unaware of the hearing date. Thompson, however, did present such
an affidavit when he verified under oath that "every statement of
fact contained [in the motion], not attributed to others, is within
affiant's knowledge, true and correct." Although the cases which
the BIA cites in its decision hold that an attorney's statements in
a brief or motion do not constitute evidence, I.N.S. v. Phinpathya,
464 U.S. 183, 188-89 n.6 (1984); Ghosh v. Attorney General, 629
F.2d 987, 989 (4th Cir. 1980); Matter of Ramirez-Sanchez, 17 I.& N.
Dec. 503, *505-06 (BIA 1980), none of the cases concern a situation
in which the respondent made a statement under oath verifying the
factual contents of the attorney's brief or motion. Thus, we hold
that the BIA erred in concluding that Thompson had not made a
statement or affidavit.
Because the BIA, if it had considered Thompson's sworn
testimony, may have arrived at a different factual conclusion and
may not have found that Thompson made only a "vague assertion" of
not receiving notice in failing to rebut the presumption that
notice was received, we VACATE the decision of the BIA and REMAND
this matter to the BIA for a reconsideration of Thompson's appeal
from the decision of the IJ denying his motion to reopen, such

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reconsideration to take into account the sworn testimony of
Thompson set out in his motion to reopen.

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