Alfredo Benites-Fernandes v. Jefferson Sessions, I

Case: 16-60802 Document: 00514186798 Page: 1 Date Filed: 10/06/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-60802
Fifth Circuit
FILED
Summary Calendar October 6, 2017
Lyle W. Cayce
ALFREDO ALEXANDER BENITES-FERNANDES, Clerk
Petitioner
v.
JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A200 683 747
Before BENAVIDES, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM: *
Alfredo Alexander Benites-Fernandes, a native and citizen of Honduras,
seeks review of a decision by the Board of Immigration Appeals (BIA) affirming
the denial by an immigration judge (IJ) of his motion to reopen removal
proceedings. Alleging that he did not receive notice of the hearing at which he
was ordered removed in absentia, Benites-Fernandes contends that the denial
of his motion constitutes reversible error. In addition, he asserts in a single
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 16-60802
sentence that the IJ erred in ruling that he had not made a prima facie showing
of his entitlement to withholding of removal and in not permitting him to
pursue his claim. He has not challenged the refusal by the IJ and BIA to sua
sponte reopen the proceedings, and any such argument is abandoned. See
Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
With respect to the denial of the motion to reopen based on a lack of
notice, we review such a ruling under “a highly deferential abuse-of-discretion
standard.” Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009). We
review questions of law de novo and factual findings for substantial evidence.
Id.
Benites-Fernandes has not shown that the IJ and BIA abused their
discretion in denying his motion to reopen. See id. The immigration courts
correctly applied the slight presumption of delivery applicable to notices sent
via regular mail. See Matter of M-R-A-, 24 I. & N. Dec. 665, 672-73 (BIA 2008).
In his affidavit, the only evidence presented in support of his assertion of non-
receipt, Benites-Fernandes asserted that he had failed to receive the notice
because his “sponsor” had died. As the IJ and BIA found, the record reflected
that the notice of hearing was sent to the address provided by Benites-
Fernandes to immigration officials, which was not the same address as that
listed for his “sponsor.” Benites-Fernandes does not explain how his
“sponsor’s” death would affect a notice sent to an address provided by Benites-
Fernandes himself, which was not that of the “sponsor.” In addition, although
Benites-Fernandes asserted that his “sponsor” died in 2011, the notice of
hearing was sent by regular mail in November 2010. The evidence presented
does not compel a conclusion that Benites-Fernandes did not receive the notice
of hearing. See Ojeda-Calderon v. Holder, 726 F.3d 669, 672-73 (5th Cir. 2013).
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As for Benites-Fernandes’s challenge to the denial of his request for
withholding of removal, his single sentence within the brief, with no reasons
for his assertion of error and no citations to the record or to legal authorities,
is inadequately briefed. See FED. R. APP. P. 28(a)(8)(A). Moreover, although
Benites-Fernandes asserts that the IJ erred in her denial of relief, the BIA
concluded that Benites-Fernandes was not entitled to withholding of removal
on different grounds than those found by the IJ; thus, we would not review the
IJ’s ruling on this issue. See Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997).
Even if we were to construe Benites-Fernandes’s brief as challenging the BIA’s
adverse ruling, he would not be entitled to relief. The time limitations on filing
a motion to reopen do not apply if the reason for the motion is to seek
immigration relief based on a change in the conditions of the country of
nationality, assuming that the evidence was material and was not available or
discoverable at the time of the previous proceeding. 8 U.S.C.
§ 1229a(c)(7)(C)(ii). Benites-Fernandes’s application for relief, which asserted
only that his family members in Honduras had faced extortion and gang
threats, resulting in death and injury to some individuals, did not compare the
current conditions to those existing at the time that the original removal
hearing was scheduled; he therefore has not shown a material change in
country conditions. See Ramos-Lopez v. Lynch, 823 F.3d 1024, 1026 (5th Cir.
2016). As he has not made a prima facie case for relief, the BIA was within its
discretion to deny the motion to reopen. See Matter of Coelho, 20 I. & N. Dec.
464, 471 (BIA 1992); accord INS v. Doherty, 502 U.S. 314, 323 (1992).
Accordingly, the petition for review is DENIED.
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