Nilma Gomes-Da Silva v. William Barr, U. S. Atty G ( 2020 )

Case: 18-60787 Document: 00515382115 Page: 1 Date Filed: 04/14/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-60787 April 14, 2020
Summary Calendar
Lyle W. Cayce
Clerk
NILMA GOMES-DA SILVA,
Petitioner
v.
WILLIAM P. BARR, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A097 739 018
Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
Nilma Gomes-Da Silva, a native and citizen of Brazil, petitions for review
of the Board of Immigration Appeals’ (BIA) decision: dismissing her appeal of
an Immigration Judge’s (IJ) order denying her 2017 motion to reopen removal
proceedings and rescind her in absentia removal order; and denying the
request in her 2018 supplemental brief for that appeal to terminate
proceedings for lack of jurisdiction. She asserts: the immigration court lacked
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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jurisdiction over her proceedings because her Notice to Appear (NTA) was
defective; and the IJ and BIA improperly denied her motion to reopen, in which
she contended she did not receive a later notice of hearing regarding her
February, 2004, removal proceedings, and she established changed country
conditions in Brazil for purposes of making an asylum, withholding-of-removal,
or Convention Against Torture claim.
“In reviewing the denial of a motion to reopen, this court applies a highly
deferential abuse-of-discretion standard, regardless of the basis of the alien’s
request for relief.” Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009)
(citation omitted). “Accordingly, this court must affirm the BIA’s decision as
long as it is 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. (citation omitted). In considering the BIA’s decision (and the
IJ’s decision, to the extent it influenced the BIA), we review legal conclusions
de novo and factual findings for substantial evidence, “meaning that this court
may not overturn the BIA’s factual findings unless the evidence compels a
contrary conclusion”. Id. (citations omitted).
Regarding jurisdiction, Gomes, citing Pereira v. Sessions, 138 S. Ct. 2105
(2018), contends her NTA was defective, thereby depriving the immigration
court of jurisdiction, because it did not state the date and time of her removal
proceedings. Our court, however, has rejected this jurisdictional challenge and
determined Pereira is limited to the context of the stop-time rule in removal
proceedings. See Pierre-Paul v. Barr, 930 F.3d 684, 688–90 (5th Cir. 2019),
petition for cert. filed, 88 U.S.L.W. 3212 (U.S. 16 Dec. 2019) (No. 19-779).
Gomes’ NTA was not defective because it detailed the nature of the removal
proceedings, stated their legal basis, and warned about the possibility of in
absentia removal; any alleged defect, moreover, would have been cured because
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Gomes was issued a later notice of hearing that included the date and time of
her removal proceedings. See id. at 690–91 (citations omitted).
Regarding her motion to reopen, Gomes asserts it was meritorious
because she established that she did not receive this later notice of hearing.
The record, however, supports the finding that the notice was sent to Gomes
by regular mail, to an address she provided to the immigration court, at which
service could be effectuated. And, although “the fact that notice was sent by
regular mail to the last address provided by an alien does not necessarily
establish that the alien has ‘receive[d]’ the notice” for purposes of a motion to
reopen, see Gomez-Palacios, 560 F.3d at 360 (alteration in original) (emphasis
added) (citation omitted), Gomes did not rebut, with credible, relevant
evidence, the presumption that she received the notice, see Matter of M-R-A-,
24 I. & N. Dec. 665, 673 (B.I.A. 2008) (finding notice of hearing sent by regular
mail receives presumption of receipt, weaker than that afforded notice sent by
certified mail, but that still requires petitioner provide sufficient evidence to
overcome it for purposes of motion to reopen claiming notice’s non-receipt).
This is true notwithstanding that “[a]n inflexible and rigid application of the
presumption of delivery is not appropriate when regular mail is the method of
service”. Id. at 674.
Specifically, to the extent Gomes asserts she did not receive the hearing
notice because immigration officials sent the notice without including her
apartment number, this contention fails. The record contains evidence,
including documentation provided by Gomes and her husband, showing
Gomes’ address was adequate and complete without an apartment number.
Additionally, to the extent Gomes contends she did not receive the
hearing notice, despite its containing a valid address, all relevant evidence
submitted must be considered in assessing whether she has rebutted the
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presumption of receipt. See id. at 673–74 (citation omitted). Relevant evidence
may include, inter alia: an affidavit from the alien; affidavits from third
parties with knowledge of whether notice was received; the alien’s behavior
after learning about her in absentia removal order and whether she exercised
due diligence in trying to redress the situation; and any other evidence
supporting a claim of non-receipt. Id. at 674.
Gomes submitted an affidavit; but, it included little detail about the
circumstances surrounding her claimed failure to receive documents at the
address she provided to immigration officials. And, although her filing a
change-of-address form after the removal hearing weighs in favor of her claim
of non-receipt, see Hernandez v. Lynch, 825 F.3d 266, 271 (5th Cir. 2016), the
record does not compel a finding that she diligently sought to redress her
situation. Similarly, to the extent she cites her husband’s affidavit, and other
materials related to his removal proceeding, the record does not compel the
conclusion that those filings concern Gomes’ receipt of her hearing notice in
this matter. Finally, the lack of evidence showing Gomes’ notice was returned
as undeliverable also weighs against her non-receipt claim. See Navarrete-
Lopez v. Barr, 919 F.3d 951, 954 (5th Cir.), cert. denied, 140 S. Ct. 228 (2019).
Finally, Gomes also contends her motion to reopen is meritorious
because she showed that country conditions in Brazil materially changed since
her removal order, entitling her to relief. But, to establish a material change
in country conditions in Brazil that would warrant the BIA’s reopening her
removal proceedings, Gomes had to present material evidence that
meaningfully compared conditions in Brazil at the time of the 2004 removal
hearing to conditions at the time of the 2017 motion to reopen. See Nunez v.
Sessions, 882 F.3d 499, 508–09 (5th Cir. 2018) (per curiam) (citations omitted).
The article Gomes filed with her motion to reopen to demonstrate changed
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conditions in Brazil offers no such information or comparison, and the record
otherwise does not contain evidence as to the conditions in Brazil either at the
time of the removal hearing or at the time of the motion to reopen.
DENIED.
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