Melsi Garcia Nunez v. Jefferson Sessions, III
Opinion
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.
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
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 *504 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-
,
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 *505 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.
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
,
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 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";
*506 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.
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
,
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
,
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 *507 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
,
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 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
,
*508 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 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
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 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 *509 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." 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
,
*510
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
,
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
,
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.
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."
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
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
,
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
,
The fact that Garcia-Nuñez was seventeen years old at the time is also immaterial.
Lopez-Dubon v. Holder
,
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
,
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."
See, e.g.,
Garcia-Perez v. Holder
,
See
Ramos-Lopez v. Lynch
,
Singh v. Lynch
,
See
Escalante-Alvarez v. Lynch
,
See
Hossain
,
See
Singh
,
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
,
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.
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.
Reference
- Full Case Name
- Melsi Garcia NUNEZ, Petitioner, v. Jefferson B. SESSIONS, III, U.S. Attorney General, Respondent.
- Cited By
- 77 cases
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- Published