Bayro Brom-Rivera v. Eric Holder, Jr.

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UNPUBLISHED OPINION FILED. [10-60117 Reversed in Part, Vacated in Part and Remanded.] Judge: TMR , Judge: JLD , Judge: EBC. Mandate pull date is 02/07/2011 [10-60117]

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Bayro Brom-Rivera v. ase: 10-60117 CEric Holder, Jr. Document: 00511322096 Page: 1 Date Filed: 12/15/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED December 15, 2010 N o . 10-60117 S u m m a r y Calendar Lyle W. Cayce Clerk B A Y R O ALFREDO BROM-RIVERA P e titio n e r v. E R I C H. HOLDER, JR., U.S. ATTORNEY GENERAL R espon dent P e t itio n for Review of an Order of the Board of Immigration Appeals BIA No. A098 890 588 B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* P e t itio n e r Bayro Alfredo Brom-Rivera seeks a petition for review of the d e c is io n of the Board of Immigration Appeals ("BIA") dismissing his appeal from t h e Immigration Judge's ("IJ") denial of his motion to reopen his removal p r o c e e d in g s . We review the BIA's decision under a "highly deferential" abuse-ofd is c r e t io n standard. Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). The B I A 's factual findings are reviewed under a "substantial evidence" standard, 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Dockets.Justia.com Case: 10-60117 Document: 00511322096 Page: 2 Date Filed: 12/15/2010 No. 10-60117 s u c h that this court will not overturn factual findings unless the evidence c o m p e ls a contrary conclusion. Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994). We a ls o review the IJ's decision where, as here, the BIA relied on the decision of the I J . Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 348 (5th Cir. 2002). B r o m -R iv e r a was apprehended near the Texas-Mexico border in April 2 0 0 5 . After being processed for removal by immigration officials, Brom-Rivera w a s personally served with a "notice to appear" at a removal hearing before an im m ig r a t io n court in Harlingen, Texas. Approximately one week before that h e a r in g , Brom-Rivera sent a letter to the immigration court asking that his case b e "sent to the Immigration Court in San Francisco, California." He also r e q u e s te d an extension in order for his recently hired immigration attorney to p r e p a r e for the hearing. Finally, he asked the court to "direct all correspondence t o the address listed above." That address was "1661 F. Crows Landing Rd., M o d e s t o , CA 95358." On the date of the originally scheduled hearing, the IJ c o n s t r u e d Brom-Rivera's letter as a motion to change venue and denied the m o t io n for failure to include all required information. The IJ also, however, s t a t e d that Brom-Rivera could resubmit his motion for consideration and r e s c h e d u le d the removal proceeding for September 21, 2005. The immigration c le r k of court mailed the order to Brom-Rivera at "1661 F. Crowns Landing Rd., M o d e s t o , CA 95358." Brom-Rivera did not appear at the September 21, 2005 h e a r in g and was ordered removed in absentia. The record does not reflect w h e t h e r either the order rescheduling the hearing or the removal decision was r e t u r n e d to the immigration court as undeliverable. T h r e e years later, Brom-Rivera moved to reopen his removal proceedings. Pursuant to 8 U.S.C. 1229a(b)(5)(C)(ii), an in absentia removal order may be r e s c in d e d "upon a motion to reopen filed at any time if the alien demonstrates t h a t the alien did not receive notice in accordance with paragraph (1) or (2) of s e c t io n 1229(a) of this title." 8 U.S.C. 1229a(b)(5)(C)(ii). "[T]he word `receive' 2 Case: 10-60117 Document: 00511322096 Page: 3 Date Filed: 12/15/2010 No. 10-60117 c le a r ly shows that the focus of the rescission inquiry, in contrast to the standard fo r the initial entry of an in absentia order, is on the actual receipt of the r e q u ir e d notice and not whether the notice was properly mailed." Gomez-Palacios v. Holder, 560 F.3d 354, 360 (5th Cir. 2009). The IJ denied B r o m -R iv e r a 's motion, finding that he was personally served with the Notice to A p p e a r when he was apprehended. The IJ also stated that "[a]s the Court m a ile d a notice of hearing to Respondent's last known address, the Court cannot r e o p e n proceedings on account of the Respondent's alleged lack of notice." This fa c t u a l finding is clearly erroneous; the record compels the contrary conclusion t h a t the court did not mail the notice of hearing to Brom-Rivera's correct a d d r e s s . See Chun, 40 F.3d at 78. Accordingly, the petition for review is GRANTED, the decision of the BIA is REVERSED, the removal order is VACATED, and the case is REMANDED fo r the BIA for further proceedings consistent with this opinion. On remand, the B I A , or the IJ, may consider in the first instance the effect of the typographical e r r o r on Brom-Rivera's alleged lack of notice. 3

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