Nunez v. Sessions
| Decision Date | 08 February 2018 |
| Docket Number | No. 16-60140,16-60140 |
| Citation | 882 F.3d 499 |
| Parties | Melsi Garcia NUNEZ, Petitioner, v. Jefferson B. SESSIONS, III, U.S. Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Melsi Garcia Nunez, pro se.
Christina J. Martin, Esq., Trial Attorney, U.S. Department of Justice, Civil Division/OIL, Washington, DC, Office of Immigration Litigation, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent
Before WIENER, ELROD, and SOUTHWICK, Circuit Judges.
Pro se petitioner Melsis Garcia–Nuñez,1 a native and citizen of Honduras, petitions for review of the Board of Immigration Appeals' order upholding the denial of her motion to reopen removal proceedings. The Board did not abuse its discretion in dismissing Garcia–Nuñez's appeal and in affirming the immigration judge's decision finding that Garcia–Nuñez received proper notice of her removal hearing and failed to show a change in country conditions. Therefore, we DENY Garcia–Nuñez's petition for review.
Petitioner Melsis Garcia–Nuñez, a native and citizen of Honduras, illegally entered the United States in 2004. The Department of Homeland Security (DHS) personally served her with a notice to appear, which charged her with removability under 8 U.S.C. § 1182(a)(6)(A)(i) for being present in the United States without admission or parole. DHS advised her orally in Spanish that the notice to appear obligated her to keep the immigration court apprised of her current mailing address, and that she could be ordered removed if she failed to appear for a scheduled hearing. Garcia–Nuñez provided DHS with her mother's phone number and mailing address.
In February 2005, Garcia–Nuñez was sent a notice of hearing by regular mail to the address she had provided. The notice, however, was returned with a "not deliverable" stamp as well as the following handwritten statement on the front of the envelope: "She don't leave [sic] here." In 2005, the immigration judge ordered Garcia–Nuñez's removal in absentia. The removal order was mailed to the address Garcia–Nuñez had provided, but the envelope was returned with a "moved—left no address" stamp and a handwritten notice stating, "She don't leave [sic] here." In addition, there was another handwritten note requesting, "Please return." Five years later, Garcia–Nuñez married Miguel Zuniga, who became a naturalized citizen a few years after their marriage. A year after their marriage, Garcia–Nuñez gave birth to a son in Los Angeles, California.
Nine years after the notice of hearing was sent, Garcia–Nuñez filed a motion to reopen removal proceedings based on a lack of notice and a change in country conditions. According to Garcia–Nuñez, she never received the hearing notice. She stated that she was a minor at the time, and she and her mother had moved in early 2005 from the address they had provided to DHS. She explained that until early 2005, she and her mother had rented a single room from an elderly lady but had arranged to continue to receive mail from the lady after they moved. Garcia–Nuñez stated that neither she nor her mother ever received any notice of hearing from the elderly lady. In addition to a declaration, Garcia–Nuñez also submitted copies of the envelopes containing her hearing notice and removal order, which both had "she don't leave [sic] here" written on them. On the basis of this evidence, Garcia–Nuñez asserted she had rebutted the presumption that her hearing notice was properly served and thus had established good cause for granting her motion to reopen.
Garcia–Nuñez also requested asylum and withholding of removal based on changed country conditions. In support of this request, she provided the State Department's Honduras Country Report for 2012, the Congressional Research Service's report on Honduras–U.S. Relations from 2013, and a collection of news articles from 2011–2014 reporting on murders and other human-rights abuses in Honduras. Finally, Garcia–Nuñez requested sua sponte reopening of removal proceedings because of her husband and child.
The immigration judge denied Garcia–Nuñez's motion to reopen. Stating that there is a presumption of delivery when a notice of hearing is sent by regular mail, the immigration judge noted that this presumption is weaker than the presumption for certified mail. The immigration judge stated that determining whether an alien has rebutted this weaker presumption of delivery requires considering all of the evidence submitted. Finding that the notice of hearing was delivered to the address Garcia–Nuñez had provided, the immigration judge found that the notice was merely not personally received. The immigration judge then cited the Board of Immigration Appeals' (BIA) decision in G–Y–R– , 23 I. & N. Dec. 181, 189 (BIA 2001), which states that a "failure in a household's internal workings" does not necessarily preclude charging the alien with receiving proper notice. Rather, the immigration judge noted that in such a case as this in which delivery occurred at the address provided to the court but the notice failed to reach the alien herself, the alien may be charged with receiving proper notice. Thus, the immigration judge found that Garcia–Nuñez received proper notice of her removal hearing.
The immigration judge also found that Garcia–Nuñez failed to show changed country conditions. Noting that a claim of changed country conditions requires a showing "not of severe present country conditions, but of a change in country conditions since the entry of the final administrative order of removal," the immigration judge found that Garcia–Nuñez had "not submitted any evidence ... on country conditions as they existed in 2005, when she was ordered removed." The immigration judge then took administrative notice of the State Department's 2005 Honduras Country Report and found that violence against women was "widespread" in 2005. Using the 2005 report as a benchmark against which to determine whether a change in Honduras had occurred, the immigration judge found that Garcia–Nuñez did not make a prima facie case of a change because "it does not appear that the relevant country conditions to which the respondent alludes would affect her in a significantly different way than when she departed Honduras." For these reasons, the immigration judge denied Garcia–Nuñez's motion to reopen.
Garcia–Nuñez appealed the immigration judge's decision to the BIA. Adopting and affirming the immigration judge's decision, the BIA dismissed Garcia–Nuñez's appeal. The BIA agreed with the immigration judge regarding notice and also determined that Garcia–Nuñez had "not demonstrated changed country conditions in Honduras on account of her gender." While noting Garcia–Nuñez's age when she arrived in the United States as well as other equitable considerations, the BIA determined that there was no reason to exercise its sua sponte authority. Garcia–Nuñez timely filed a petition for review.
In reviewing the denial of a motion to reopen removal proceedings, we apply a highly deferential abuse-of-discretion standard. Hernandez–Castillo v. Sessions , 875 F.3d 199, 203 (5th Cir. 2017). " ‘[S]o long as [the Board's decision] is not 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,’ we must affirm the Board's decision." Singh v. Gonzales , 436 F.3d 484, 487 (5th Cir. 2006) (alterations in original) (citation omitted). We review the BIA's factual findings under the substantial-evidence standard, which means that we cannot reverse the BIA's factual determinations unless the evidence "compels a contrary conclusion." Gomez–Palacios v. Holder , 560 F.3d 354, 358 (5th Cir. 2009). In evaluating a denial of a motion to reopen, we review the BIA's order and also will evaluate the immigration judge's underlying decision if it influenced the BIA's opinion. Hernandez–Castillo , 875 F.3d at 204.
On appeal, Garcia–Nuñez argues that because she did not receive proper notice of her removal hearing, the BIA erred in upholding the denial of her motion to reopen.2 An order of removal may be rescinded only: (1) upon a motion to reopen filed within 180 days after the date of the removal order if the alien shows that the failure to appear at the removal hearing was because of "exceptional circumstances"; or (2) upon a motion to reopen filed "at any time" if the alien shows that she did not receive proper notice or was in federal or state custody and the failure to appear was through no fault of her own. 8 U.S.C. § 1229a(b)(5)(C). Because Garcia–Nuñez filed her motion to reopen nine years after the removal order, and because she has not shown that she was unable to attend her hearing due to being in federal or state custody, the only basis for rescission of the removal order is lack of notice.
A notice of removal proceedings should be personally served on the alien, but may be mailed to the alien or her attorney when personal service is not practicable. 8 U.S.C. § 1229(a)(1)–(2). An alien who fails to appear at a removal proceeding shall be ordered removed in abstentia , so long as the government shows by "clear, unequivocal, and convincing evidence" that the alien is removable and that she or her attorney was provided written notice. 8 U.S.C. § 1229a(b)(5)(A). "On a motion to reopen, ... the focus is whether the alien actually received the required notice and not whether the notice was properly mailed." Ojeda–Calderon v. Holder , 726 F.3d 669, 673 (5th Cir. 2013) ().
While there is a presumption of delivery when a notice of hearing is sent by mail, "[t]he presumption of valid service via...
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