IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-60117

Summary Calendar

BAYRO ALFREDO BROM-RIVERA

Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A098 890 588

Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:

*

Petitioner Bayro Alfredo Brom-Rivera seeks a petition for review of the

decision of the Board of Immigration Appeals (“BIA”) dismissing his appeal from

the Immigration Judge’s (“IJ”) denial of his motion to reopen his removal

proceedings. We review the BIA’s decision under a “highly deferential” abuse-ofdiscretion standard. Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). The

BIA’s factual findings are reviewed under a “substantial evidence” standard,

United States Court of Appeals

Fifth Circuit

F I L E D

December 15, 2010

Lyle W. Cayce

Clerk

 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.

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such that this court will not overturn factual findings unless the evidence

compels a contrary conclusion. Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994). We

also review the IJ’s decision where, as here, the BIA relied on the decision of the

IJ. Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 348 (5th Cir. 2002).

Brom-Rivera was apprehended near the Texas-Mexico border in April

2005. After being processed for removal by immigration officials, Brom-Rivera

was personally served with a “notice to appear” at a removal hearing before an

immigration court in Harlingen, Texas. Approximately one week before that

hearing, Brom-Rivera sent a letter to the immigration court asking that his case

be “sent to the Immigration Court in San Francisco, California.” He also

requested an extension in order for his recently hired immigration attorney to

prepare for the hearing. Finally, he asked the court to “direct all correspondence

to the address listed above.” That address was “1661 F. Crows Landing Rd.,

Modesto, CA 95358.” On the date of the originally scheduled hearing, the IJ

construed Brom-Rivera’s letter as a motion to change venue and denied the

motion for failure to include all required information. The IJ also, however,

stated that Brom-Rivera could resubmit his motion for consideration and

rescheduled the removal proceeding for September 21, 2005. The immigration

clerk of court mailed the order to Brom-Rivera at “1661 F. Crowns Landing Rd.,

Modesto, CA 95358.” Brom-Rivera did not appear at the September 21, 2005

hearing and was ordered removed in absentia. The record does not reflect

whether either the order rescheduling the hearing or the removal decision was

returned to the immigration court as undeliverable.

Three years later, Brom-Rivera moved to reopen his removal proceedings.

Pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii), an in absentia removal order 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 paragraph (1) or (2) of

section 1229(a) of this title." 8 U.S.C. § 1229a(b)(5)(C)(ii). “[T]he word ‘receive’

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clearly shows that the focus of the rescission inquiry, in contrast to the standard

for the initial entry of an in absentia order, is on the actual receipt of the

required notice and not whether the notice was properly mailed.”

Gomez-Palacios v. Holder, 560 F.3d 354, 360 (5th Cir. 2009). The IJ denied

Brom-Rivera’s motion, finding that he was personally served with the Notice to

Appear when he was apprehended. The IJ also stated that “[a]s the Court

mailed a notice of hearing to Respondent’s last known address, the Court cannot

reopen proceedings on account of the Respondent’s alleged lack of notice.” This

factual finding is clearly erroneous; the record compels the contrary conclusion

that the court did not mail the notice of hearing to Brom-Rivera’s correct

address. See Chun, 40 F.3d at 78.

Accordingly, the petition for review is GRANTED, the decision of the BIA

is REVERSED, the removal order is VACATED, and the case is REMANDED

for the BIA for further proceedings consistent with this opinion. On remand, the

BIA, or the IJ, may consider in the first instance the effect of the typographical

error on Brom-Rivera’s alleged lack of notice.

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