Manuel Garcia-Perez v. Eric Holder, Jr.
558 F. App'x 343
5th Cir.2013Background
- Manuel Garcia‑Perez, a Honduran national, was apprehended in 1999 and again on Oct. 8, 2002; an NTA was served on him Oct. 8, 2002 (signed by him and a Border Patrol agent).
- An Oct. 18, 2002 Notice of Hearing (NOH) was mailed to the detention facility; after release on bond (Oct. 22), Garcia‑Perez reported 915 Freeman Ave, Long Beach as his address.
- A rescheduled NOH (mailed Oct. 23, 2002 to 915 Freeman Ave) set a Dec. 2, 2002 hearing; Garcia‑Perez failed to appear and an in absentia removal order issued Dec. 2, 2002.
- In Aug. 2011 (nearly nine years later) Garcia‑Perez moved to reopen and rescind, arguing (1) inadequate notice (NTA lacked specific time/date in Spanish and NOH/in‑person service defects) and (2) eligibility for asylum/withholding based on persecution of homosexuals in Honduras.
- The IJ denied the motion as untimely with respect to notice, and denied the changed‑conditions asylum exception because the evidence reflected pre‑entry conditions and was not newly discoverable; the BIA summarily affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Garcia‑Perez “did not receive notice” under §1229(a) so as to toll the 90‑day filing rule | NTA did not give time/date in writing or Spanish notice of address‑reporting requirement; NOH/in‑person service defective | NTA and NOH provided sufficient notice (oral Spanish notice on NTA; NOH mailed to last reported address); Garcia‑Perez failed to keep address current | Court upheld IJ: record supports fact finding that he received required notice and/or failed to keep address current; exception not met |
| Whether changed country conditions permit untimely reopening for asylum/withholding | Country‑condition reports and personal statements show persecution of homosexuals in Honduras and risk of torture — warrant reopening despite delay | Evidence describes persecution that predated removal hearing; petitioner had chance to present it earlier, so no “changed conditions” warranting reopening | Court upheld IJ: evidence not new or materially unavailable at prior hearing; changed‑conditions exception not met |
Key Cases Cited
- Gomez‑Palacios v. Holder, 560 F.3d 354 (5th Cir. 2009) (abuse‑of‑discretion standard for motions to reopen)
- Eduard v. Ashcroft, 379 F.3d 182 (5th Cir. 2004) (consider BIA summary affirmance and rely on IJ’s findings)
- Bolvito v. Mukasey, 527 F.3d 428 (5th Cir. 2008) (substantial‑evidence review of IJ factual findings)
- Mapes v. Bishop, 541 F.3d 582 (5th Cir. 2008) (pro se litigants still must brief arguments to preserve them)
- Joseph v. Holder, 600 F.3d 1235 (9th Cir. 2010) (credibility and related asylum considerations)