Melsi Garcia Nunez v. Jefferson Sessions, III

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-60140
Fifth Circuit
FILED
February 8, 2018
MELSI GARCIA NUNEZ, Lyle W. Cayce
Clerk
Petitioner,
v.
JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals
Before WIENER, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:
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
1 Garcia-Nuñez notes that her first name was misspelled in the underlying
proceedings. Her passport confirms this misspelling. We use the spelling of her name as it
appears on her passport in the text of our opinion, and we hyphenate “Garcia-Nuñez” as both
parties do in their briefs. However, as our practice is to use the case caption from the Board
of Immigration Appeals’ order, we leave the case caption as “Melsi Garcia Nunez v. Jefferson
B. Sessions, III, U.S. Attorney General.”
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of her removal hearing and failed to show a change in country conditions.
Therefore, we DENY Garcia-Nuñez’s petition for review.
I.
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
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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
sregular 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
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“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
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exercise its sua sponte authority. Garcia-Nuñez timely filed a petition for
review.
II.
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.
III.
A.
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
2 Garcia-Nuñez also argues that the notice to appear was defective because it did not
specify the date and time of her hearing. However, Garcia-Nuñez failed to raise this
argument before the BIA. Under 8 U.S.C. § 1252(d)(1), a petitioner must exhaust her
administrative remedies before we can review a final order of removal. Exhausting
administrative remedies here requires raising an issue before the BIA in a motion to reopen;
failure to do so acts as a jurisdictional bar to our review. Wang v. Ashcroft, 260 F.3d 448,
452–53 (5th Cir. 2001) (noting that the petitioner did not argue before the BIA in his motion
to reopen that “exceptional circumstances” warranted the exercise of the BIA’s sua sponte
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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)
(holding that the BIA did not abuse its discretion in charging the petitioner
with receiving a notice of hearing, because the petitioner’s unsupported denial
of receipt was insufficient to rebut the strong presumption of delivery
associated with service by certified mail).
authority, and therefore holding that this court lacked jurisdiction to consider the issue on
appeal). Because Garcia-Nuñez failed to raise the argument before the BIA, we have no
jurisdiction to review her argument that the notice to appear was defective.
For the sake of legal clarity, however, we note our holding in Gomez-Palacios that a
notice to appear “need not include the specific time and date of a removal hearing in order
for the statutory notice requirements to be satisfied; that information may be provided in a
subsequent [notice of hearing].” Gomez-Palacios v. Holder, 560 F.3d 354, 359 (5th Cir. 2009).
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While there is a presumption of delivery when a notice of hearing is sent
by mail, “[t]he presumption of valid service via regular mail is weaker than
that for service via certified mail.” Hernandez v. Lynch, 825 F.3d 266, 269 (5th
Cir. 2016) (holding that the BIA abused its discretion in denying the
petitioner’s motion to reopen because it failed to consider all the relevant
evidence in determining that the petitioner did not rebut the presumption of
notice that applies to delivery by regular mail). With certified mail, “a strong
presumption of effective service arises that may be overcome only by the
affirmative defense of nondelivery or improper delivery by the Postal Service.”
Maknojiya v. Gonzales, 432 F.3d 588, 589 (5th Cir. 2005) (remanding to the
BIA because the immigration judge applied the strong presumption of delivery
for certified mail to a case involving delivery by regular mail).
With regular mail, the immigration judge and the BIA must consider all
submitted evidence in determining whether an alien has rebutted the
presumption of delivery. Hernandez, 825 F.3d at 270; M–R–A–, 24 I. & N. Dec.
665, 674 (BIA 2008). “[A]n alien’s statement in an affidavit that is without
evidentiary flaw may be sufficient to rebut the presumption of effective
service.” Hernandez, 825 F.3d at 269. However, when a notice of hearing
“reaches the correct address but does not reach the alien through some failure
in the internal workings of the household, the alien can be charged with
receiving proper notice.” Ojeda-Calderon, 726 F.3d at 673 (quoting G-Y-R-, 23
I. & N. Dec. at 189). This is because an alien does not need to “personally
receive, read, and understand” a notice of hearing for the notice requirements
to be satisfied. See G-Y-R-, 23 I. & N. Dec. at 189 (stating this principle in the
context of a notice to appear). Rather, “[a]n alien can, in certain circumstances,
be properly charged with receiving notice, even though he or she did not
personally see the mailed document.” Id.
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Here, Garcia-Nuñez was sent a notice of hearing by regular mail. Thus,
the weaker presumption of delivery applies, and the immigration judge and
the BIA must consider all relevant evidence submitted. Because the BIA
expressly adopted and affirmed the immigration judge’s decision in this case,
we review the immigration judge’s decision here. The immigration judge
considered the evidence Garcia-Nuñez submitted and found that the notice was
delivered to the correct address, but that someone then returned it. Moreover,
the immigration judge relied on G-Y-R- for the proposition that a “failure in a
household’s internal workings” does not preclude charging an alien with
receiving proper notice, so long as the notice was sent to the correct address.
Unlike Maknojiya, this is not a case of potentially failed delivery. See
Maknojiya, 432 F.3d at 589 (stating that there was no copy of an addressed
envelope in the record or any other indication that the notice of hearing
actually was delivered). Rather, the immigration judge found this to be a case
of failed internal workings of a household, and under our deferential standard
of review, we cannot say the judge erred in so doing. In light of the handwritten
statement on the envelope containing the notice of hearing, the immigration
judge found that delivery occurred at the address Garcia-Nuñez provided. To
the extent that Garcia-Nuñez contends that the notice of hearing was
undelivered, this argument lacks evidentiary support. The immigration judge
determined that the post office stamp “not deliverable as addressed, unable to
forward” does not mean that the notice was never delivered. Rather, the
immigration judge found that notice was delivered but returned at the request
of an unidentified person at the address Garcia-Nuñez provided. Under an
abuse-of-discretion standard, we cannot say these findings were error.
Garcia-Nuñez also argues that notice was inadequate because she never
personally received the envelope containing the notice of hearing. In making
this argument, she suggests that delivery of a notice of hearing is improper
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unless signed by the alien or a responsible person at the alien’s address. This
argument, too, is unavailing. There is no requirement in our caselaw that an
alien (or a responsible member of the alien’s household) actually view or sign
a notice of hearing delivered to the address provided by the alien. 3
Moreover, the fact that Garcia-Nuñez was not living at the address she
provided to the immigration court when the notice of hearing was delivered is
immaterial. 4 The government “satisfies the notice requirement for obtaining
a removal order when it gives proper notice at the most recent mailing address
the alien provided.” Hernandez-Castillo, 875 F.3d at 204 (holding that when
an alien fails to keep the immigration court apprised of her current mailing
address, the removal order should not be revoked on the ground that the alien
did not actually receive notice of her removal hearing); Gomez-Palacios, 560
F.3d at 358 (same); see also 8 U.S.C. § 1229a(b)(5). Thus, the BIA did not abuse
its discretion in affirming the immigration judge’s decision that Garcia-Nuñez
received proper notice.
B.
Garcia-Nuñez next argues that because she provided sufficient evidence
of changed country conditions, the BIA erred in upholding the denial of her
motion to reopen removal proceedings. 5 It is undisputed that Garcia-Nuñez
3 To the extent Garcia-Nuñez argues that not personally receiving a notice of hearing
violates due process, this argument also fails. Garcia-Nuñez cannot establish a due process
violation because “there is no liberty interest at stake in a motion to reopen due to the
discretionary nature of the relief sought.” Hernandez-Castillo 875 F.3d 199, 205 (5th Cir.
2017) (quoting Gomez-Palacios, 560 F.3d at 361 n.2).
4 The fact that Garcia-Nuñez was seventeen years old at the time is also immaterial.
Lopez-Dubon v. Holder, 609 F.3d 642, 646 (5th Cir. 2010) (stating that “[t]he service provision
[now at 8 C.F.R. § 103.8(c)(2)(ii)] specifically calls for notice to be served on an adult only
when the alien is under 14 years of age”).
5 Garcia-Nuñez cannot challenge the BIA’s refusal to exercise its sua sponte authority
to reopen her removal proceedings because she failed to raise the issue in her opening brief.
See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (“An appellant abandons all issues
not raised and argued in its initial brief on appeal.”). Even if Garcia-Nuñez had made the
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filed her motion to reopen well beyond the ninety-day time frame established
by 8 U.S.C. § 1229a(c)(7)(C)(i). Nevertheless, this ninety-day requirement does
not apply if the motion to reopen rests on a request for asylum, withholding of
removal under 8 U.S.C. § 1231(b)(3), 6 or relief under the U.N. Convention
Against Torture, and the motion “is based on 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.” 8 U.S.C.
§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.23(b)(4)(i). The motion to reopen 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 is subject to the ninety-day limitation. See 8 U.S.C.
§ 1229a(c)(7)(C)(i).
As a number of our unpublished decisions demonstrate, a petitioner
bears a heavy burden to show changed country conditions for purposes of
reopening removal proceedings. 7 Showing changed country conditions
argument, we lack jurisdiction to review the issue, as we lack jurisdiction to review an
immigration judge’s or the BIA’s refusal to reopen removal proceedings sua sponte.
Hernandez-Castillo, 875 F.3d at 206–07.
6 This statutory provision states that, subject to the exceptions in subparagraph (B),
“the Attorney General may not remove an alien to a country if the Attorney General decides
that the alien’s life or freedom would be threatened in that country because of the alien’s
race, religion, nationality, membership in a particular social group, or political opinion.” 8
U.S.C. § 1231(b)(3).
7 See, e.g., Garcia-Perez v. Holder, 558 F. App’x 343, 347–48 (5th Cir. 2013) (holding
that the immigration judge did not abuse his discretion in rejecting a claim of changed
country conditions where the petitioner’s evidence described conditions in Honduras that
existed prior to the date of the removal hearing); Thomas v. Holder, 396 F. App’x 60, 61 (5th
Cir. 2010) (holding that the petitioner had not shown changed country conditions in Jamaica
where the evidence merely attested to the political corruption and gang violence that had
been an issue since the 1960s).
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requires making a meaningful comparison between the conditions at the time
of the removal hearing and the conditions at the time the alien filed her motion
to reopen. 8 Moreover, showing the continuation of a trend is insufficient to
show changed country conditions. 9 A petitioner must show a material rather
than a merely incremental change. 10 In addition, individual incidents, without
evidence that they are part of a larger material change, do not constitute
changed country conditions. 11 Accordingly, showing a change in personal
circumstances is also insufficient to show a change in country conditions. 12
The immigration judge, in considering the documents Garcia-Nuñez
submitted, found that Garcia-Nuñez had “not submitted any evidence . . . on
country conditions as they existed in 2005, when she was ordered removed.”
8 See Ramos-Lopez v. Lynch, 823 F.3d 1024, 1026 (5th Cir. 2016) (upholding the BIA’s
decision rejecting a motion to reopen based on changed country conditions where the
petitioner showed that the number of women murdered in Guatemala had recently been
increasing but failed meaningfully to compare the conditions at the time of her removal
hearing with the conditions at the time of her motion to reopen).
9 Singh v. Lynch, 840 F.3d 220, 222 (5th Cir. 2016) (stating that “[a] motion to reopen
can be denied where the evidence of changed conditions shows only a continuance of ongoing
violence in the home country”).
10 See Escalante-Alvarez v. Lynch, 654 F. App’x 167, 168 (5th Cir. 2016) (holding that
despite the petitioner’s argument that violence against women, especially murder, had
“increased dramatically,” the evidence submitted “reflects that violence against women has
been, and remains, an ongoing problem in Honduras”); Hossain v. Lynch, 603 F. App’x 345,
346 (5th Cir. 2015) (holding that evidence showing violence was “ongoing or increased only
incrementally . . . is insufficient to show that the conditions materially changed in a manner
warranting reopening”).
11 See Hossain, 603 F. App’x at 346 (stating that “a single instance of brutal violence
does not compel a conclusion that political violence has escalated generally”); Ugochukwu v.
Holder, 547 F. App’x 522, 523 (5th Cir. 2013) (the fact that the petitioner’s family’s home was
burned after his removal hearing did not show a material change in country conditions).
12 See Singh, 840 F.3d at 222–23 (footnote omitted) (holding that the petitioner’s claim
that he feared for his safety upon returning to India because the Indian police had targeted
him amounted to “a change in personal circumstances and [did] not constitute changed
country conditions”). Garcia-Nuñez argues that because she was seventeen years old at the
time of her removal hearing and twenty-six years old at the time she filed her motion to
reopen, a return to Honduras will mean experiencing dangers she would not have faced as a
seventeen-year-old. However, this is an argument based on changed personal circumstances;
such circumstances do not constitute changed country conditions.
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The immigration judge’s finding on this point has support in the record. 13
Moreover, even though Garcia-Nuñez did not show a meaningful comparison,
the immigration judge acted within his discretion in taking administrative
notice of country conditions in 2005 based on a report on Honduras by the State
Department. 14 See Hossain v. Lynch, 603 F. App’x 345, 346 (5th Cir. 2015).
Having taken notice of the conditions in Honduras in 2005, the immigration
judge found that “while conditions in Honduras have worsened in some
respects since [Garcia-Nuñez] was ordered removed, violence against women
was ‘widespread’ even in 2005.” According to the immigration judge, “it does
not appear that the relevant country conditions to which [Garcia-Nuñez]
alludes would affect her in a significantly different way than when she
departed Honduras.” Thus, the immigration judge found that Garcia-Nuñez
had “failed to meet her burden to make a prima facie case of a change in
country conditions.”
Based on the record, we cannot say that the BIA’s order affirming the
immigration judge’s decision was “utterly without foundation in the evidence.”
Singh, 436 F.3d at 487. Nor can we say that the evidence “compels a contrary
conclusion.” Gomez-Palacios, 560 F.3d at 358. Accordingly, we are not at
liberty to grant the petition.
13 The only evidence in the record on appeal that suggests a meaningful comparison
between past and present conditions in Honduras is the declaration of Claudia
Herrmannsdorfer. However, this declaration was not part of the record before the
immigration judge; rather, Garcia-Nuñez filed it as an attachment to her opening brief before
the BIA. Thus, we do not consider Herrmannsdorfer’s declaration in evaluating whether the
BIA abused its discretion. See Hossain, 603 F. App’x at 347 (holding that because the BIA is
barred from making findings of fact, the record on appeal to the BIA is limited to the record
before the immigration judge); Enriquez-Gutierrez v. Holder, 612 F.3d 400, 409–10 (5th Cir.
2010) (same).
14 Bureau of Democracy, Human Rights, and Labor, U.S. Dep’t of State, Honduras
Country Reports on Human Rights Practices – 2005 (Mar. 2006),
www.state.gov/j/drl/rls/hrrpt/2005/61732.htm.
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We do not hold today that a significant increase in violence against
women can never constitute a change in country conditions justifying waiver
of the deadline for reopening. We hold only that when as here, there is some
evidentiary foundation for concluding that the increase in violence is
incremental but not a material change, the immigration judge and BIA did not
abuse their discretion in denying reopening. Reasonable minds may disagree
over whether an increase in violence of a certain degree over a certain number
of years counts as a material change in the condition of a country. Reasonable
disagreement, however, is not our standard. We must ask whether the BIA’s
conclusion, in adopting the immigration judge’s determinations, is “utterly
without foundation in the evidence.” Singh, 436 F.3d at 487. On the record
before us, we cannot say the BIA abused its discretion. 15
IV.
Therefore, the BIA did not abuse its discretion in upholding the
immigration judge’s denial of the motion to reopen removal proceedings and in
rejecting Garcia-Nuñez’s claims regarding lack of notice and changed country
conditions. Accordingly, we DENY Garcia-Nuñez’s petition for review.
15 To the extent that Garcia-Nuñez’s request for sua sponte reopening is based on her
having a husband and child who are United States citizens, we note that requests for
prosecutorial discretion are the province of Immigration and Customs Enforcement and are
not properly part of this appeal. We express no view on the merits of that request.
13