Carlos Franco-Guardado v. Loretta Lynch

Filing

UNPUBLISHED OPINION FILED. [15-60368 Affirmed ] Judge: TMR , Judge: PRO , Judge: JWE Mandate pull date is 04/24/2017 [15-60368]

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Date Filed: 03/03/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-60368
Summary Calendar

United States Court of Appeals
Fif h Circuit

FILED
March 3, 2017
Lyle W. Cayce
Clerk

CARLOS ALEXI FRANCO-GUARDADO,
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. A079 964 762
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *

Carlos Alexi Franco-Guardado, a native and citizen of Honduras,
petitions this court for review of the denial of his motion to reopen the in
absentia removal proceedings. Denial of such motions is reviewed under “a
highly deferential abuse-of-discretion standard.” Gomez-Palacios v. Holder,
560 F.3d 354, 358 (5th Cir. 2009). The decision of the Board of Immigration
Appeals (BIA) will be upheld “as long as it is not capricious, without foundation

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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in the evidence, or otherwise so irrational that it is arbitrary rather than the
result of any perceptible rational approach.” Id.
Franco-Guardado argues that the BIA erred in concluding that he
received notice of his September 2003 removal hearing. An alien who fails to
appear at a removal proceeding shall be ordered removed in absentia if the
Government shows “by clear, unequivocal, and convincing evidence” that the
alien is removable and that the alien, or his attorney, received written notice
as required under 8 U.S.C. § 1229(a)(1) or (2). 8 U.S.C. § 1229a(b)(5)(A). An
in absentia removal order may be rescinded upon a motion to reopen filed at
any time if the alien demonstrates that he did not receive notice in accordance
with § 1229(a)(1) or (2). § 1229a(b)(5)(C)(ii).
Service of notice by mail creates a rebuttable presumption that the notice
was delivered and actually received by the person to whom it was addressed.
See Hernandez v. Lynch, 825 F.3d 266, 269 (5th Cir. 2016); Matter of M-R-A-,
24 I. & N. Dec. 665, 672-73 (BIA 2008). “The presumption of valid service via
regular mail is weaker than that for service via certified mail.” Hernandez,
825 F.3d at 269; see Matter of M-R-A-, 24 I. & N. Dec. at 672-73. In determining
whether an alien has rebutted this weaker presumption, an immigration court
must consider “‘all relevant evidence submitted.’” Hernandez, 825 F.3d at 270
(quoting Matter of M-R-A-, 24 I. & N. Dec. at 674).
Although Franco-Guardado asserts that the BIA failed to consider that
he had a strong incentive to appear at his September 2003 removal hearing,
the record directly contradicts this assertion. The BIA expressly found that
Franco-Guardado’s “complete absence of diligence strongly undermine[d] the
credibility of [his] claim that he would have appeared for the scheduled hearing
had he received the May 27, 2003, hearing notice.”

In addition, Franco-

Guardado’s argument that “no notice to the obligor to deliver the alien was

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ever received” is unsupported by any citation to the record and is not addressed
in his affidavit. Finally, to the extent that Franco-Guardado asserts that he
requested a change of venue at his bond hearing to Newark, New Jersey, and
that the immigration court allegedly granted this request, the BIA specifically
noted that “this assertion [was] belied by [his] own affidavit.”
Because the BIA did not fail to consider all relevant evidence, it did not
abuse its discretion in denying Franco-Guardado’s motion to reopen on this
ground. See Hernandez, 825 F.3d at 270; Gomez-Palacios, 560 F.3d at 358.
Franco-Guardado next contends that the BIA erred in determining that
he did not demonstrate a material change in country conditions in Honduras
since his September 2003 removal hearing. A motion to reopen is not subject
to time and number limitations if the request for relief “is based on changed
country conditions arising in the country of nationality . . . if such evidence is
material and was not available and would not have been discovered or
presented at the previous proceeding.”

§ 1229a(c)(7)(C)(ii); 8 C.F.R.

§ 1003.23(b)(4)(i).
An alien seeking to reopen his removal proceedings based on changed
country conditions must do more than show that present conditions in the
relevant country are bad; he must submit evidence “compar[ing], in [a]
meaningful way, the conditions existing when [he] filed [his] motion to reopen
. . . with those at the time of [his]. . . removal hearing and how those general
conditions relate to [his] specific claims.” Ramos-Lopez v. Lynch, 823 F.3d
1024, 1026 (5th Cir. 2016). Because the documents submitted in support of
Franco-Guardado’s claim do not address the time frame that must be
contrasted to determine whether country conditions have changed, FrancoGuardado has failed to show that there has been a material change in country
conditions in Honduras since his September 2003 removal hearing. See id.

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Thus, the BIA did not abuse its discretion in ruling that Franco-Guardado
failed to establish a material change in country conditions sufficient to warrant
consideration of his untimely motion to reopen. See id.; Gomez-Palacios, 560
F.3d at 358. Based on the foregoing, we need not reach Franco-Guardado’s
remaining arguments regarding whether he established prima facie eligibility
for relief from removal.
Franco-Guardado’s petition for review is DENIED.

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