Carlos Franco-Guardado v. Jefferson Sessions, III
678 F. App'x 240
5th Cir.2017Background
- Carlos Alexi Franco-Guardado, a Honduran national, sought review of the BIA's denial of his motion to reopen an in absentia removal order from a September 2003 hearing.
- The government relied on service by regular mail; under controlling law, regular mail creates a rebuttable (weaker) presumption of delivery.
- Franco-Guardado claimed he did not receive the May 27, 2003 notice, asserted he had incentive to appear, and alleged a change of venue had been granted and no notice to an obligor was received.
- The BIA found Franco-Guardado’s assertions contradicted by his own affidavit and noted his lack of diligence undermined his credibility about a willingness to appear.
- Franco-Guardado also argued changed country conditions in Honduras justified reopening; the BIA found his documentary evidence failed to meaningfully compare conditions at the hearing date and at motion filing.
- The Fifth Circuit reviewed the BIA’s denial for abuse of discretion and denied the petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Franco-Guardado received constitutionally and statutorily required notice of the Sept. 2003 hearing | He did not receive the May 27, 2003 notice | Regular mail presumptively delivered; record evidence and his lack of diligence undermine his claim | BIA did not abuse discretion; presumption not rebutted and findings supported denial of reopening |
| Whether Franco-Guardado showed a material change in country conditions in Honduras since Sept. 2003 | Country conditions have worsened, warranting untimely reopening based on changed conditions | Evidence fails to compare conditions at hearing vs. motion filing and is therefore not material | BIA did not abuse discretion; failed to show material change, so motion remains time-barred |
| Whether alleged change of venue and lack of notice to an obligor support reopening | He requested and was granted change of venue; no notice to obligor occurred | Record and his affidavit belie the change-of-venue claim; no record support for obligor claim | BIA plausibly rejected these factual assertions; no reopening warranted |
| Whether the court needed to reach prima facie eligibility for relief | Franco-Guardado argued merits of relief from removal | Respondent argued threshold procedural failures barred consideration | Court declined to reach merits because procedural grounds disposed of the motion |
Key Cases Cited
- Gomez-Palacios v. Holder, 560 F.3d 354 (5th Cir. 2009) (abuse-of-discretion standard for denial of motions to reopen)
- Hernandez v. Lynch, 825 F.3d 266 (5th Cir. 2016) (regular-mail service creates a rebuttable presumption of delivery; consider all relevant evidence)
- Ramos-Lopez v. Lynch, 823 F.3d 1024 (5th Cir. 2016) (to show changed country conditions, movant must meaningfully compare conditions at hearing time with conditions at motion filing)