IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-60912

Summary Calendar

CARLOS ELIU GARCIA-MEMBRENO,

Petitioner

v.

JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A078 996 943

Before JONES, WIENER, and CLEMENT, Circuit Judges.

PER CURIAM:*

Petitioner Carlos Eliu Garcia-Membreno, a native and citizen of 

Honduras, has filed a petition for review of the order of the Board of 

Immigration Appeals (BIA) upholding the denial of his motion to reopen. The 

immigration judge (IJ) ordered Garcia-Membreno removed in absentia after he 

failed to appear at his removal hearing on May 6, 2003, and GarciaMembreno’s motion to reopen sought rescission of the removal order.

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 2, 2017

Lyle W. Cayce

Clerk

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No. 15-60912

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In this court, Garcia-Membreno argues that a deficiency in the certificate 

of service for the hearing notice establishes that he did not receive proper 

notice of the May 6, 2003 hearing. Citing Interim Operating Policies and 

Procedures Memorandum No. 97-2: Notices of Immigration Judge Hearings

(OPPM 97-2), he asserts that the certificate of service for the hearing notice 

was incomplete because it did not indicate how service was made, as neither of 

the two choices, “mail” or “personal service,” was marked by court personnel.

We review the order of the BIA and will consider the IJ’s underlying 

decision only if it influenced the determination of the BIA. Gomez-Palacios v. 

Holder, 560 F.3d 354, 358 (5th Cir. 2009). Questions of law are reviewed de 

novo, but we accord “deference to the BIA’s interpretation of immigration 

statutes unless the record reveals compelling evidence that the BIA’s 

interpretation is incorrect.” Id. The BIA’s factual findings are reviewed for 

substantial evidence. Id. Under the substantial-evidence standard, we “may 

not overturn the BIA’s factual findings unless the evidence compels a contrary 

conclusion.” Id.

Written notice of a change in the time or place of a removal proceeding 

should be personally served “or, if personal service is not practicable, through 

service by mail to the alien or to the alien’s counsel of record.” 8 U.S.C. 

§ 1229(a)(2). The notice requirement “is satisfied if proper notice is provided 

at the most recent mailing address provided by the alien.” Gomez-Palacios, 

560 F.3d at 358. Service of notice by mail creates a rebuttable presumption 

that the notice was delivered and actually received by the person to whom it 

was addressed. Hernandez v. Lynch, 825 F.3d 266, 269 (5th Cir. 2016).

An order of removal entered in absentia may be rescinded “upon a motion 

to reopen filed at any time if the alien demonstrates that the alien did not 

receive notice” in accordance with § 1229(a)(2). 8 U.S.C. § 1229a(b)(5)(C)(ii). 

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We review the denial of Garcia-Membreno’s motion to reopen under a highly 

deferential abuse-of-discretion standard and will “affirm the BIA’s decision as 

long as it is not capricious, without foundation in the evidence, or otherwise so 

irrational that it is arbitrary rather than the result of any perceptible rational 

approach.” See Gomez-Palacios, 560 F.3d at 358.

Garcia-Membreno has not demonstrated that the BIA abused its 

discretion on this issue. First, substantial evidence supports the BIA’s finding 

that Garcia-Membreno actually received the written notice of the May 6, 2003 

hearing. The certificate of service on the notice was signed by the court clerk 

and indicated that the notice was served on Garcia-Membreno on February 27, 

2003. Absent from Garcia-Membreno’s affidavit supporting his motion to 

reopen was any statement indicating that he did not in fact receive the notice, 

and Garcia-Membreno does not make any such assertion here.

To obtain rescission of his in absentia removal order, Garcia-Membreno 

had the burden of demonstrating that he did not “receive” notice of the May 6, 

2003 hearing in accordance with § 1229(a)(2). See § 1229a(b)(5)(C)(ii). “[T]he 

word ‘receive’ clearly shows that the focus of the rescission inquiry . . . is on the 

actual receipt of the required notice and not whether the notice was properly 

mailed.” Gomez-Palacios, 560 F.3d at 360.

Asserting that there is no evidence that the hearing notice was actually 

sent by mail, Garcia-Membreno contends that the rebuttable presumption of 

effective service by mail does not apply in his case. However, given that he did 

not dispute actually receiving the notice, substantial evidence supports the 

BIA’s finding that service of the notice was effectuated either by regular mail 

or personal service as required by § 1229(a)(2) and that, if done by mail, the 

presumption of effective service for regular mail applied and was not overcome. 

Accordingly, the BIA did not abuse its discretion in upholding the denial of 

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Garcia-Membreno’s motion to reopen with respect to the lack of proper notice. 

See Gomez-Palacios, 560 F.3d at 361.

Garcia-Membreno’s reliance on OPPM 97-2 does not change the result. 

“[N]ot all agency publications are of binding force.” Lyng v. Payne, 476 U.S. 

926, 937 (1986). “Generally, to be legally binding on an agency, its own 

publications must have been promulgated pursuant to a specific statutory 

grant of authority and in conformance with the procedural requirements 

imposed by Congress.” Coliseum Square Ass’n v. Jackson, 465 F.3d 215, 229 

(5th Cir. 2006) (internal quotation marks omitted and citations omitted). 

Garcia-Membreno presents no argument that OPPM 97-2 qualifies as a legally 

binding publication, and he has thus waived any such argument. See 

Chambers v. Mukasey, 520 F.3d 445, 448 n.1 (5th Cir. 2008).

In addition, Garcia-Membreno argues that his due process rights were 

violated because the IJ did not consider the motion for change of venue that he 

filed prior to the May 6, 2003 hearing. Asserting that the motion requested a 

venue change so he could be represented by counsel of his choice, GarciaMembreno further contends that he was denied the right to counsel.

The mere filing of a motion for a change of venue did not relieve GarciaMembreno of the responsibility to appear at the May 6, 2003 hearing. See Patel 

v. INS, 803 F.2d 804, 806 (5th Cir. 1986). In any event, Garcia-Membreno

cannot establish a due process violation because there is no liberty interest at 

stake in a motion to reopen due to the discretionary nature of the relief sought. 

See Gomez-Palacios, 560 F.3d at 361 n.2; Altamirano-Lopez v. Gonzales, 435 

F.3d 547, 550-51 (5th Cir. 2006).

The petition for review is DENIED.

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