Carlos Garcia-Membreno v. Jefferson Sessions, III
688 F. App'x 296
| 5th Cir. | 2017Background
- Petitioner Carlos Eliu Garcia-Membreno, a Honduran national, was ordered removed in absentia after failing to appear at his May 6, 2003 removal hearing.
- The hearing notice contained a certificate of service signed by the court clerk indicating service on February 27, 2003, but neither the "mail" nor "personal service" box was marked.
- Garcia-Membreno moved to reopen, arguing the defective certificate (per OPPM 97-2) showed he did not receive proper notice and seeking rescission of the in absentia order.
- He also argued the IJ failed to consider a pre-hearing motion to change venue (he claimed this deprived him of counsel of choice and violated due process).
- The BIA denied the motion to reopen; the Fifth Circuit reviewed the BIA’s decision for abuse of discretion and reviewed legal questions de novo and factual findings for substantial evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of notice for in absentia removal | Certificate defective under OPPM 97-2 (no method marked) so notice not proper; rescission required | Certificate showed service date and petitioner never denied actual receipt; service satisfied § 1229(a)(2) by mail or personal service | Denied—substantial evidence supported that petitioner actually received notice; rescission not warranted |
| Applicability of mail-service presumption | Presumption of delivery inapplicable because no evidence notice was mailed | Even if method unclear, petitioner did not dispute actual receipt; presumption (if applicable) not rebutted | Denied—service was effectuated by mail or personal service; presumption applied or was unnecessary given actual receipt |
| Binding effect of OPPM 97-2 | OPPM requires certificate to indicate method; noncompliance invalidates notice | OPPM is not shown to be a legally binding agency rule | Denied—petitioner waived any argument that OPPM is binding; OPPM does not control outcome |
| Due process / change of venue & right to counsel | IJ failed to consider venue change motion, denying right to counsel of choice | Filing a venue motion does not excuse appearance; relief to reopen is discretionary so no protected liberty interest | Denied—failure to show a due process violation; motion to reopen is discretionary and no liberty interest was implicated |
Key Cases Cited
- Gomez-Palacios v. Holder, 560 F.3d 354 (5th Cir. 2009) (standards for notice and review of BIA decisions)
- Hernandez v. Lynch, 825 F.3d 266 (5th Cir. 2016) (mail service creates rebuttable presumption of delivery)
- Lyng v. Payne, 476 U.S. 926 (1986) (agency publications are not binding absent statutory authority and proper procedure)
- Coliseum Square Ass’n v. Jackson, 465 F.3d 215 (5th Cir. 2006) (when agency publications are legally binding)
- Chambers v. Mukasey, 520 F.3d 445 (5th Cir. 2008) (waiver of arguments not raised)
- Patel v. INS, 803 F.2d 804 (5th Cir. 1986) (filing a motion does not excuse appearance at hearing)
- Altamirano-Lopez v. Gonzales, 435 F.3d 547 (5th Cir. 2006) (discretionary nature of motions to reopen means no protected liberty interest)