Alfredo Benites-Fernandes v. Jefferson Sessions, I
698 F. App'x 234
| 5th Cir. | 2017Background
- Alfredo Alexander Benites-Fernandes, a Honduran national, was ordered removed in absentia after failing to appear at an immigration hearing.
- He filed a motion to reopen, alleging he did not receive notice of the hearing because his “sponsor” died.
- The notice of hearing had been mailed to the address Benites-Fernandes himself had provided; that address differed from his sponsor’s.
- The notice was mailed in November 2010; Benites-Fernandes’ affidavit claimed his sponsor died in 2011.
- The IJ denied the motion to reopen; the BIA affirmed. Benites-Fernandes also asserted withholding of removal in his motion to reopen.
- He did not challenge the refusal to sua sponte reopen; that argument was considered abandoned.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the motion to reopen should be granted for lack of notice of the removal hearing | Benites-Fernandes: did not receive mailed notice because his sponsor died | Government/BIA: notice was mailed to address Benites-Fernandes provided; presumption of delivery applies; sponsor’s death irrelevant | Denied — record does not rebut presumption of delivery; no abuse of discretion under abuse-of-discretion standard |
| Whether reopening is required to consider withholding of removal based on changed country conditions | Benites-Fernandes: asserted family faced extortion and gang threats, implying eligibility for withholding and exception to time limits | BIA: applicant failed to show material change in country conditions or a prima facie case; procedural time-limit exception not met | Denied — brief inadequately developed; no showing of material change or prima facie entitlement, so reopening discretionary and properly denied |
Key Cases Cited
- Gomez-Palacios v. Holder, 560 F.3d 354 (5th Cir.) (standard of review for reopening — abuse of discretion)
- Soadjede v. Ashcroft, 324 F.3d 830 (5th Cir.) (abandonment of issues not argued)
- Ojeda-Calderon v. Holder, 726 F.3d 669 (5th Cir.) (presumption of delivery for mailed notices)
- Mikhael v. INS, 115 F.3d 299 (5th Cir.) (BIA’s different grounds preclude review of IJ’s separate reasoning)
- Ramos-Lopez v. Lynch, 823 F.3d 1024 (5th Cir.) (requiring comparison to prior country conditions to show material change)
- INS v. Doherty, 502 U.S. 314 (U.S. Supreme Court) (discretion to deny reopening when prima facie case lacking)