Manuel Garcia-Perez v. Eric Holder, Jr. ( 2013 )

Case: 12-60691 Document: 00512399572 Page: 1 Date Filed: 10/07/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 7, 2013
No. 12-60691
Lyle W. Cayce
Clerk
MANUEL GARCIA–PEREZ,
Petitioner,
v.
ERIC HOLDER, JR., Attorney General,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals
(A077 791 757)
Before REAVLEY, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
Manuel Garcia–Perez, proceeding pro se, seeks review of a decision from
the Board of Immigration Appeals (“BIA”). In 2011, Garcia–Perez filed a motion
to reopen and rescind an in absentia removal order that was issued against him
in 2002. The Immigration Judge (“IJ”) denied the motion, and the Board of
Immigration Appeals (“BIA”) affirmed without opinion. In this pending petition,
Garcia–Perez argues that the IJ’s denial of the motion was in error because he
was not properly notified of the 2002 removal hearing and because he is eligible
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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to seek asylum and withholding of removal based on changed conditions in his
home country. We DENY the petition.
I.
Garcia–Perez is a native citizen of Honduras and is not a citizen of the
United States. On February 6, 1999, Garcia–Perez attempted to enter the
country illegally near Brownsville, Texas, where he was apprehended by the
United States Border Patrol. Garcia–Perez claimed to be Mexican; accordingly,
the Border Patrol transported him to Mexico. Soon thereafter, however, the
Mexican authorities returned him across the border, advising the Border Patrol
that Garcia–Perez was in fact Honduran. The government did not initiate
removal proceedings, and Garcia–Perez was released.
The Border Patrol again apprehended and detained Garcia–Perez on
October 8, 2002, in New Orleans, Louisiana. The Immigration and
Naturalization Service (“INS”) issued a Notice to Appear (“NTA”) against
Garcia–Perez on October 8, 2002.1 The same day, Garcia–Perez was personally
served with the NTA, which he signed “Manuel Garcia.” A Border Patrol agent
also signed the NTA. Immediately above Garcia–Perez’s signature, the NTA
indicated that Garcia–Perez had been provided oral notice, in the Spanish
language, of the location of his hearing (i.e., New Orleans) and of the
consequences of a failure to appear. The NTA also warned Garcia–Perez that he
was required to report his mailing address and any subsequent changes in his
mailing address.
1
The NTA stated that Garcia–Perez was an alien present in the United States who had
not been admitted or paroled.
2
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On October 18, 2002, the immigration court mailed a Notice of Hearing
(“NOH”) to Garcia–Perez at the INS detention facility in New Orleans, where he
was detained at the time, informing him that the removal hearing was scheduled
for October 29, 2002. Upon being released on bond on October 22, 2002,
Garcia–Perez reported his address as 915 Freeman Avenue, Long Beach,
California. An INS official certified that he had (1) provided Garcia–Perez with
a Change of Address form and (2) notified Garcia–Perez that he was required to
inform the government of any change of address. The immigration court mailed
a new NOH to Garcia–Perez at the Long Beach address on October 23, 2002,
rescheduling the removal hearing for December 2, 2002. The NOH was not
returned as undeliverable.
Garcia–Perez failed to appear at the December 2, 2002, hearing,
prompting the IJ to issue an in absentia order of removal. The order was mailed
to Garcia–Perez at 915 Freeman Avenue and was not returned as undeliverable.
Nearly nine years later, on August 5, 2011, Garcia–Perez filed with the IJ
a motion to reopen and rescind the 2002 removal order. Although Garcia–Perez
conceded that he had received the NTA on October 8, 2002, he argued that the
NTA alone was insufficient because it did not provide the specific time and date
of the removal hearing. Garcia–Perez further argued that he had not received
the information concerning the removal proceedings in his native Spanish
language. Garcia–Perez claimed that he had not received a copy of either the
NOH or the in absentia removal order and argued that the government was
required to serve all notices and orders in person or by certified mail. Moreover,
in a declaration attached to the motion, Garcia–Perez stated that, at the time of
his detention in 2002, his address had been 1754 High Avenue, Long Beach,
3
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California. Based on the foregoing, Garcia–Perez urged the IJ to reopen and
rescind the 2002 removal order for lack of proper notice.
Garcia–Perez also urged the IJ to reopen the removal order so that he
could apply for asylum and withholding of removal. In addition to the
declaration, Garcia–Perez attached to his motion an Application for Asylum and
for Withholding of Removal (“Application”) and various secondary accounts of
the treatment of homosexuals in Honduras. Through the declaration and the
Application, Garcia–Perez explained that in Honduras he had been persecuted
and tortured because he is a homosexual.
The IJ denied the motion on September 7, 2011, rejecting both of
Garcia–Perez’s grounds for relief. Relying on 8 C.F.R. § 1003.23(b)(4)(ii), the IJ
concluded that the notice provided to Garcia–Perez was legally sufficient and
that therefore the motion to reopen and rescind on that basis was untimely.
Although the IJ noted that Garcia–Perez had provided “chilling details,” the IJ
concluded that, because the incidents recounted in the declaration and the
Application happened before Garcia–Perez’s entry into the United States in
1999, those incidents did not constitute “changed country conditions” under 8
C.F.R. § 1003.23(b)(4)(i). The IJ also found that the evidence was not credible,
noting that Garcia–Perez had a history of providing false information to United
States immigration authorities.
On August 10, 2012, the BIA affirmed, without opinion, the decision of the
IJ. Garcia–Perez timely appealed. See 8 U.S.C. § 1252(b)(1) (“The petition for
review must be filed not later than 30 days after the date of the final order of
removal.”).
II.
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Where, as here, a petitioner appeals a denial of a motion to reopen, we
apply a highly deferential abuse-of-discretion standard. Gomez–Palacios v.
Holder, 560 F.3d 354, 358 (5th Cir. 2009). Under this standard, we must affirm
as long as the decision below was not “capricious, without foundation in the
evidence, or otherwise so irrational that it is arbitrary rather than the result of
any perceptible rational approach.” Id. Because the BIA summarily affirmed
the opinion of the IJ, we consider the factual findings and legal conclusions of
the IJ. Eduard v. Ashcroft, 379 F.3d 182, 186 (5th Cir. 2004). We review
findings of fact for substantial evidence, meaning that we must accept the IJ’s
findings unless the evidence compels a contrary conclusion. Bolvito v. Mukasey,
527 F.3d 428, 435 (5th Cir. 2008). We review questions of law de novo, though
we defer to the IJ’s interpretation of immigration regulations if the
interpretation is reasonable. Id.
III.
When initiating removal proceedings against an alien, the government
must provide the alien with notice of any removal hearing, either in person or
by mail if personal service is not practicable. 8 U.S.C. § 1229(a)(1). The notice
must specify:
(A) The nature of the proceedings against the alien.
(B) The legal authority under which the proceedings are
conducted.
(C) The acts or conduct alleged to be in violation of law.
(D) The charges against the alien and the statutory provisions
alleged to have been violated.
(E) The alien may be represented by counsel . . . .
(F) (i) The requirement that the alien must immediately
provide . . . a written notice of an address . . . at which
the alien may be contacted . . . .
(ii) The requirement that the alien must provide . . . a
written record of any change of the alien’s address . . . .
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(iii) The consequences under section 1229a(b)(5) of this title
of failure to provide address . . . information pursuant
to this subparagraph.
(G) (i) The time and place at which the proceedings will be
held.
(ii) The consequences under section 1229a(b)(5) of this title
of the failure, except under exceptional circumstances,
to appear at such proceedings.
§ 1229(a)(1)(A)–(G). If the immigration court subsequently reschedules the time
or location of the removal hearing, the government must notify the alien, in
writing, of the new time or location and of the consequences of failing to appear.
§ 1229(a)(2)(A). Where an alien has failed to keep the immigration court
apprised of his most current mailing address, however, the government is not
obligated to provide notice of any change in the time or location of the removal
hearing. § 1229(a)(2)(B).
Under 8 U.S.C. § 1229a(b)(5)(A), an alien who fails to appear at a removal
hearing after written notice has been provided shall be ordered removed in
absentia if the government establishes by clear, unequivocal, and convincing
evidence that the written notice was so provided and that the alien is removable.
For purposes of this section, written notice is considered sufficient if it was
provided at the most recent address reported by the alien. § 1229a(b)(5)(A). But
no written notice is required in order for the IJ to enter an in absentia order if
the alien has failed to report his address as required by § 1229(a)(1)(F).
§ 1229a(b)(5)(B).
Motions to reopen and rescind in absentia removal orders generally must
be filed within 90 days of the date of the final order of removal.
§ 1229a(c)(7)(C)(i). Congress has created several exceptions to this general time
limitation, allowing otherwise untimely motions where the alien “did not receive
notice” of the removal hearing in accordance with § 1229(a)(1) and (2), see
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§ 1229a(b)(5)(C)(ii), and where the alien seeks to apply for asylum based on
changed country conditions, see § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.23(b)(4)(i).
Garcia–Perez invokes both of these exceptions. We address each in turn.
A.
To establish the applicability of the exception provided in
§ 1229a(b)(5)(C)(ii), Garcia–Perez must demonstrate that he “did not receive
notice” as required by § 1229(a)(1) and (2). Garcia–Perez advances a single
argument on appeal: that when the NTA was served on him on October 8, 2002,
he did not receive notice, in Spanish, of the requirement that he keep the
immigration court informed of his address or of the consequences of failing to
appear.2 We are not persuaded.
The NTA, which was signed by both Garcia–Perez and a Border Patrol
agent, states that Garcia–Perez was provided oral notice in Spanish of the time
and place of his hearing and of the consequences of failing to appear. The IJ
found as a matter of fact that Garcia–Perez had received this notice in Spanish,
and we see no evidence in the record that compels a contrary conclusion. See
Bolvito, 527 F.3d at 435. Moreover, following the receipt of the NTA, the October
23, 2002, NOH (scheduling the December 2, 2002, removal hearing) was served
by mail to Garcia–Perez’s last reported address, 915 Freeman Avenue. Even
assuming that Garcia–Perez’s address was actually 1754 High Avenue, the
evidence before the IJ established that Garcia–Perez either provided an incorrect
address (i.e., 915 Freeman Avenue instead of 1754 High Avenue) or failed to
keep the immigration court apprised of his current address (i.e., 1754 High
Avenue). See Gomez–Palacios, 560 F.3d at 361 (where an alien claims to have
2
Although Garcia–Perez advanced several other arguments in his motion to reopen and
rescind, he has abandoned them on appeal. These are arguments are therefore precluded. See
Mapes v. Bishop, 541 F.3d 582, 584 (5th Cir. 2008) (“Although pro se briefs are afforded liberal
construction . . . even pro se litigants must brief arguments in order to preserve them.”).
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not actually received notice, the alien’s failure to keep the government apprised
of his address is grounds for denying a motion to reopen and rescind under
§ 1229a(b)(5)(C)(ii)).3
B.
There is no time limit on filing a motion to reopen a removal order for the
purpose of applying for asylum or withholding of removal. § 1229a(c)(7)(C)(ii);
8 C.F.R. § 1002.23(b)(4)(i). To establish the exception, a petitioner must provide
evidence of “changed country conditions arising in the country of nationality or
the country to which removal has been ordered, if such evidence is material and
was not available and would not have been discovered or presented at the
previous proceeding.” § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1002.23(b)(4)(i). The
petitioner must show a change in country conditions since the time of the prior
removal hearing. See § 1229a(c)(7)(C)(ii); see also Thomas v. Holder, 396 F.
App’x 60, 61 (5th Cir. 2010) (unpublished but persuasive); Janfeshan v.
Mukasey, 303 F. App’x 189, 190 (5th Cir. 2008) (unpublished but persuasive).
The motion must (1) state the new facts that will be proven at a hearing to be
held if the motion is granted; (2) be supported by affidavits or other evidentiary
material; and (3) be accompanied by the appropriate application for relief and
all supporting documentation. 8 C.F.R. § 1003.23(b)(3). If the petitioner cannot
make the proper showing, the motion to reopen is subject to the general 90-day
limitation. See § 1229a(c)(7)(C)(i).
In his motion filed nearly nine years after the December 2, 2002, removal
hearing, Garcia–Perez fails to demonstrate that the evidence of the conditions
in Honduras was not available and would not have been discovered prior to that
3
Garcia–Perez does not contend that he never received the October 18, 2002, NOH
(scheduling the removal hearing for October 29, 2002) that was delivered to the detention
facility in New Orleans. Garcia–Perez does not attempt to explain why he failed to appear on
October 29, 2002.
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hearing. As the IJ observed, the evidence submitted in the declaration and the
Application relates to incidents that occurred before Garcia–Perez left Honduras.
Moreover, the motion to reopen states only that Garcia–Perez fears being
tortured or killed if he returns to Honduras and that Honduras’s “country
conditions” reports show that homosexuals are persecuted by the government.4
Read together with the declaration and the Application, these “country
conditions” reports—presumably, the secondary accounts attached to the
motion—do not contain new facts that would support a grant of asylum. The
alleged country conditions existed prior to the date of the removal hearing, as
explicated in detail by Garcia–Perez. The law requires a petitioner to show
changed conditions in order to reopen a removal proceeding. Garcia–Perez had
the opportunity to assert the basis for asylum or withholding of removal nine
years before he filed his motion to reopen; he therefore cannot avail himself of
§ 1229a(c)(7)(C)(ii). Accordingly, the IJ’s decision was not “without foundation
in the evidence” or “arbitrary rather than the result of any perceptible rational
approach.” See Gomez–Palacios, 560 F.3d at 358; see also Ojeda–Calderon v.
Holder, 2013 WL 4029146, at *3, __ F.3d __ (5th Cir. Aug. 8, 2013) (“[A]n
‘Immigration Judge has discretion to deny a motion to reopen even if the moving
party has established a prima facie case for relief.’” (quoting 8 C.F.R. §
1003.23(b)(3))).
IV.
Garcia–Perez has failed to establish that he did not receive proper notice
or that he is eligible for asylum or withholding of removal based on changed
country conditions. We therefore conclude that the IJ did not abuse its
4
Garcia–Perez also quotes extensively from Joseph v. Holder, 600 F.3d 1235 (9th Cir.
2010), to refute the IJ’s conclusion that his statements were not credible. Because the IJ did
not abuse its discretion in concluding that Garcia–Perez failed to establish changed conditions,
we do not address Garcia–Perez’s credibility.
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discretion in denying Garcia–Perez’s motion to reopen and rescind the in
absentia removal order entered on December 2, 2002. We DENY the petition.
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