Melsi Garcia Nunez v. Jefferson Sessions, III
882 F.3d 499
5th Cir.2018Background
- Melsis Garcia-Nuñez, a Honduran national, entered the U.S. unlawfully in 2004 and was served a notice to appear; she provided her mother’s address/phone to DHS.
- A hearing notice and later an in-absentia removal order were mailed in 2005 to the provided address; both envelopes were returned stamped with handwritten notes like “She don’t leave here.”
- Garcia-Nuñez married a U.S. citizen and had a U.S.-born child years later; nine years after the removal order she filed a motion to reopen, asserting lack of notice and changed country conditions.
- She submitted the returned envelopes and country-condition materials (State Dept. and news reports) and sought asylum/withholding and sua sponte reopening based on family ties.
- The IJ found service was mailed to the correct address and characterized the issue as an internal household failure, thus charging Garcia-Nuñez with notice; the IJ also found she failed to show a material change in Honduras since 2005.
- The BIA adopted and affirmed the IJ’s decision; this petition for review followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Garcia-Nuñez received proper notice of her 2005 removal hearing | She never received the notice; returned envelopes show nondelivery and rebut the presumption of mailing | Notice was mailed to the most recent address she provided; returned envelopes indicate delivery to that address and an internal household failure | BIA did not abuse discretion: weaker presumption for regular mail was not rebutted; delivery to given address sufficed |
| Whether the notice to appear was defective for not stating hearing date/time | (Raised later) The notice lacked date/time so was defective | Defect argument was not exhausted before BIA; court lacks jurisdiction to review | Court declined to review for lack of exhaustion |
| Whether Garcia-Nuñez made a prima facie showing of changed country conditions since 2005 to excuse the filing deadline | Country reports and news articles show increased violence against women in Honduras since 2005 | Evidence fails to compare 2005 baseline to present or show a material (not incremental) change | BIA did not abuse discretion: petitioner failed to show meaningful comparison or material change |
| Whether BIA should exercise sua sponte reopening based on family ties | Her U.S. citizen husband and child justify equitable reopening | Sua sponte reopening and prosecutorial discretion are discretionary and not sufficiently shown; ICE discretion issues not before court | Court refused to review/award sua sponte reopening; no abuse of discretion by BIA |
Key Cases Cited
- Hernandez-Castillo v. Sessions, 875 F.3d 199 (5th Cir. 2017) (standard for reviewing denial of motion to reopen and notice-by-mail principles)
- Hernandez v. Lynch, 825 F.3d 266 (5th Cir. 2016) (weaker presumption of delivery for regular mail; must consider all evidence)
- Ojeda-Calderon v. Holder, 726 F.3d 669 (5th Cir. 2013) (focus on actual receipt of notice on motion to reopen)
- Maknojiya v. Gonzales, 432 F.3d 588 (5th Cir. 2005) (strong presumption of delivery for certified mail contrasted with regular mail)
- Gomez-Palacios v. Holder, 560 F.3d 354 (5th Cir. 2009) (notice-to-appear need not include hearing date/time; comparison of conditions for reopening)
- Singh v. Gonzales, 436 F.3d 484 (5th Cir. 2006) (deference standard: BIA decision must not be utterly without foundation)