Gerylouis Nguhlefeh Njilefac seeks review of a decision of the Board of Immigration Appeals (the “Board”) denying his motion for reconsideration. Nguhlefeh Njilefac primarily argues that the Board did not adequately consider two declarations indicating that his counsel did not receive certain documents related to the proceedings. Because these declarations do not sufficiently rebut the presumption that his counsel received the documents the Board sent, we DENY the petition for review.
Nguhlefeh Njilefac, a native and citizen of Cameroon, sought asylum, withholding of removal, and protection under the Convention Against Torture in the United States on the grounds that he faced persecution due to his affiliation with an opposition political party in his home country. After an immigration judge denied his claims in an oral judgment, he appealed to the Board. In connection with that appeal, the Board mailed his counsel a briefing schedule, a transcript of the proceedings before the immigration judge, and the immigration judges written decision. Those documents were sent to the same address the Board had sent other materials, including a receipt of Nguhlefeh Njilefacs notice of appeal. But, according to Nguhlefeh Njilefac, his counsel did not receive the documents and, therefore, Nguhlefeh Njilefacs counsel did not file a brief.
Approximately three months later, the Board upheld the immigration judges decision, resolving Nguhlefeh Njilefacs arguments as they were raised in his notice of appeal. The Boards decision was sent to the same address the Board had sent all the other materials. Nguhlefeh Njilefacs counsel received the decision. Nguhlefeh Njilefac then sought reconsideration on due process grounds, claiming that the earlier alleged non-delivery left his counsel unable to adequately prepare arguments in the appeal. In connection with that motion, Nguhlefeh Njilefac submitted two declarations (one from his counsel and one from another attorney who shared the same mailbox) stating that his counsel never received the relevant documents. Those two declarations were signed “under penalty of perjury”—but did not represent that the statements were “true and correct.” The attorney who shared the mailbox explained: “The postman delivers my mail into the same box as for [the law firm representing Nguhlefeh Njilefac]. Staff from either of our offices may collect mail. Neither I nor my staff, to my knowledge, have seen or received any mail pertaining to ․ Nguhlefeh Njilefac ․”
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(emphasis added). Nguhlefeh Njilefacs attorney stated that she “searched [her] office thoroughly” and did not receive the documents. However, nothing was said about whether any staff persons in that office had been surveyed to see if they received the documents. Neither attorney statement, then, conclusively negated the possibility their staff received the documents in question.
The Board denied Nguhlefeh Njilefacs motion, concluding that Nguhlefeh Njilefac had not overcome the presumption that the documents were delivered and stating that the submitted declarations were not sworn affidavits; the documents had been sent to Nguhlefeh Njilefacs counsels address of record; the documents were not returned as undelivered; and Nguhlefeh Njilefacs counsel had apparently received other materials from the Board sent to the same address. Nguhlefeh Njilefac timely petitioned our court for review.
We have jurisdiction to review the Boards decision denying Nguhlefeh Njilefacs motion for reconsideration under 8 U.S.C. § 1252(a). See Kucana v. Holder, 558 U.S. 233, 253, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010). We review the Boards decision on a motion for reconsideration or a motion to reopen
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for abuse of discretion. INS v. Doherty, 502 U.S. 314, 322–23, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Nunez v. Sessions, 882 F.3d 499, 505 (5th Cir. 2018) (per curiam). We will not overturn the Boards decision to deny either type of motion unless the decision is “capricious, racially invidious, utterly without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach.”
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Nunez, 882 F.3d at 505 (internal quotation marks and citation omitted). We defer to the Boards factual findings if they are supported by substantial evidence and will not overturn a factual determination “unless the evidence compels a contrary conclusion.” Id. (internal quotation marks and citation omitted). Moreover, even if the Board erred at some point in its analysis, we can still uphold its ultimate decision if “there is no realistic possibility” that the Boards conclusion would have been different absent the error. Enriquez-Gutierrez v. Holder, 612 F.3d 400, 407 (5th Cir. 2010) (internal quotation marks and citation omitted).
Against this backdrop, Nguhlefeh Njilefac primarily contends that the Board incorrectly determined that his counsel had received the briefing schedule, transcript, and written decision. He takes particular aim at the Boards treatment of the declarations he submitted, arguing that the Board erroneously disregarded them because they were not sworn affidavits.
We generally presume that mailed documents reach their intended recipient. Nunez, 882 F.3d at 506; see also In re Eagle Bus Mfg., Inc., 62 F.3d 730, 735 (5th Cir. 1995). Even assuming arguendo that the Board erred by giving the declarations less weight than sworn affidavits (or by otherwise disregarding them),
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the Board did not abuse its discretion in concluding that Nguhlefeh Njilefac failed to rebut the presumption of delivery. The declarations submitted by Nguhlefeh Njilefacs counsel and his counsels officemate stated only that the counsel had not received the relevant documents—which is typically insufficient to cast doubt on a delivery, especially where, as here, our review is highly deferential and especially since it is not clear that staff did not receive the relevant documents. In re Eagle Bus, 62 F.3d at 735 (noting that, although it can create a fact issue, “[a] denial of receipt is insufficient to rebut a presumption that proper notice was given”); see also Mauricio-Benitez v. Sessions, 908 F.3d 144, 150 (5th Cir. 2018) (concluding that the Board did not err in determining that the presumption of delivery applied notwithstanding a partys affidavit indicating nonreceipt); Nunez, 882 F.3d at 507 (concluding that the Board did not err in determining the presumption of delivery applied to documents sent to a partys mailing address but were alleged not to have reached their intended recipient due to “failed internal workings of a household”).
Moreover, the Boards decision was supported by substantial contrary evidence in the record indicating that the documents had been delivered. As the Board indicated, the documents were not returned as undelivered, and previous materials (including the Boards earlier decision) had been sent to the same address, apparently without difficulty. These facts reinforce the presumption that the documents reached Nguhlefeh Njilefacs counsels office. We therefore hold that the Boards conclusion that the presumption of delivery applied was not “so irrational that it [wa]s arbitrary.”
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Id. at 505 (internal quotation marks and citation omitted). Indeed, these facts are enough to demonstrate that there is “no realistic possibility” that the Board would have granted Nguhlefeh Njilefacs motion even if it had treated the declarations as equivalent to sworn affidavits. Enriquez-Gutierrez, 612 F.3d at 407 (internal quotation marks and citation omitted).
Nguhlefeh Njilefacs argument that the Board should have reconsidered its decision in light of the declarations therefore fails. Because the Board acted within its discretion in applying the presumption of delivery, Nguhlefeh Njilefacs remaining arguments—all stemming from the alleged nonreceipt of the documents and his alleged inability to file a responsive brief—also fail. See, e.g., Tima v. Gonzales, 156 F. Appx 717, 719 (5th Cir. 2005) (per curiam) (rejecting due process challenges related to a partys alleged nonreceipt of immigration hearing transcripts because the party did not present sufficient evidence suggesting nonreceipt).
Accordingly, we DENY the petition for review.
FOOTNOTES
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. A statement that something is true “to [an individuals] knowledge” communicates that the individual lacks personal familiarity with the matter asserted. Such a statement, without more, therefore has no evidentiary value. See, e.g., Henderson v. Dept of Pub. Safety & Corr., 901 F.2d 1288, 1296 (5th Cir. 1990) (concluding that an affidavit made “to the best of [declarants] knowledge and belief” was not based on personal knowledge and was therefore “legally insufficient” to prove the truth of its contents); Lopez-Carrasquillo v. Rubianes, 230 F.3d 409, 414 (1st Cir. 2000) (same); Garmon v. Lumpkin Cnty., 878 F.2d 1406, 1408–09 (11th Cir. 1989) (same); see also Am.s Best Inns, Inc. v. Best Inns of Abilene, L.P., 980 F.2d 1072, 1074 (7th Cir. 1992) (per curiam) (“[O]nly [an] affidavit made on personal knowledge has any value (‘to the best of my knowledge and belief’ is insufficient).”).
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. There is some debate between the parties whether Nguhlefeh Njilefacs motion is better characterized as a motion for reconsideration or as a motion to reopen. Although litigants typically bring a motion to reopen when alleging nonreceipt of documents, the difference between the two types of motions has no impact on the resolution of this case—the Boards decision did not turn on the title of Nguhlefeh Njilefacs motion and, in any event, our review is essentially the same with respect to either motion. See Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005).
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. We note that these types of motions are particularly disfavored in immigration proceedings. Doherty, 502 U.S. at 322–23, 112 S.Ct. 719.
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. The parties both seem to think that the Board did not consider the declarations at all, but it appears that the Board may have simply found the “declarations” less credible because they were not sworn-to. We generally treat a declaration made “under penalty of perjury” the same as a sworn affidavit so long as it “substantially” follows a particular form. 28 U.S.C. § 1746 (giving such a declaration “like force and effect” to a sworn affidavit).As relevant to this case, however, our circuit does not appear to have addressed either: (1) whether a “declaration” passes muster if, as here, it was made “under penalty of perjury” but does not represent that its contents are “true and correct,” thereby failing to comply with the full text of § 1746; or (2) whether a “declaration” that fails to comply with all of the requirements of § 1746 must be treated as equally credible to a sworn affidavit. Cf. Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir. 1988) (concluding that a declaration that did not include either phrase did not comply with § 1746 because it “allow[ed] the affiant to circumvent the penalties for perjury”); Ion v. Chevron USA, Inc., 731 F.3d 379, 382 n.2 (5th Cir. 2013) (considering a qualifying declaration as equivalent to a sworn affidavit in determining whether a genuine issue of material fact existed for the purposes of a motion for summary judgment). We need not answer those questions today; even if we treat the declarations at issue here as equivalent to sworn affidavits in all respects, Nguhlefeh Njilefac fails to rebut the presumption of delivery under the relevant standard of review.
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. For the first time on appeal, Nguhlefeh Njilefac asserts that something out of the ordinary could have nonetheless happened with respect to this particular delivery—specifically, that the documents could have been part of a batch of mail that had been scattered on the side of the road—but that contention is nowhere to be found in the declarations he actually submitted to the Board.
Haynes, Circuit Judge: