IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-60691

MANUEL GARCIA–PEREZ,

Petitioner,

v.

ERIC HOLDER, JR., Attorney General,

Respondent.

Petition for Review of an Order of 

the Board of Immigration Appeals

(A077 791 757)

Before REAVLEY, ELROD, and HAYNES, Circuit Judges.

PER CURIAM:*

Manuel Garcia–Perez, proceeding pro se, seeks review of a decision from

the Board of Immigration Appeals (“BIA”). In 2011, Garcia–Perez filed a motion

to reopen and rescind an in absentia removal order that was issued against him

in 2002. The Immigration Judge (“IJ”) denied the motion, and the Board of

Immigration Appeals (“BIA”) affirmed without opinion. In this pending petition,

Garcia–Perez argues that the IJ’s denial of the motion was in error because he

was not properly notified of the 2002 removal hearing and because he is eligible

United States Court of Appeals

Fifth Circuit

F I L E D

October 7, 2013

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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to seek asylum and withholding of removal based on changed conditions in his

home country. We DENY the petition. 

I.

Garcia–Perez is a native citizen of Honduras and is not a citizen of the

United States. On February 6, 1999, Garcia–Perez attempted to enter the

country illegally near Brownsville, Texas, where he was apprehended by the

United States Border Patrol. Garcia–Perez claimed to be Mexican; accordingly,

the Border Patrol transported him to Mexico. Soon thereafter, however, the

Mexican authorities returned him across the border, advising the Border Patrol

that Garcia–Perez was in fact Honduran. The government did not initiate

removal proceedings, and Garcia–Perez was released. 

The Border Patrol again apprehended and detained Garcia–Perez on

October 8, 2002, in New Orleans, Louisiana. The Immigration and

Naturalization Service (“INS”) issued a Notice to Appear (“NTA”) against

Garcia–Perez on October 8, 2002.1 The same day, Garcia–Perez was personally

served with the NTA, which he signed “Manuel Garcia.” A Border Patrol agent

also signed the NTA. Immediately above Garcia–Perez’s signature, the NTA

indicated that Garcia–Perez had been provided oral notice, in the Spanish

language, of the location of his hearing (i.e., New Orleans) and of the

consequences of a failure to appear. The NTA also warned Garcia–Perez that he

was required to report his mailing address and any subsequent changes in his

mailing address. 

1 The NTA stated that Garcia–Perez was an alien present in the United States who had

not been admitted or paroled.

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On October 18, 2002, the immigration court mailed a Notice of Hearing

(“NOH”) to Garcia–Perez at the INS detention facility in New Orleans, where he

was detained at the time, informing him that the removal hearing was scheduled

for October 29, 2002. Upon being released on bond on October 22, 2002,

Garcia–Perez reported his address as 915 Freeman Avenue, Long Beach,

California. An INS official certified that he had (1) provided Garcia–Perez with

a Change of Address form and (2) notified Garcia–Perez that he was required to

inform the government of any change of address. The immigration court mailed

a new NOH to Garcia–Perez at the Long Beach address on October 23, 2002,

rescheduling the removal hearing for December 2, 2002. The NOH was not

returned as undeliverable. 

Garcia–Perez failed to appear at the December 2, 2002, hearing,

prompting the IJ to issue an in absentia order of removal. The order was mailed

to Garcia–Perez at 915 Freeman Avenue and was not returned as undeliverable.

Nearly nine years later, on August 5, 2011, Garcia–Perez filed with the IJ

a motion to reopen and rescind the 2002 removal order. Although Garcia–Perez

conceded that he had received the NTA on October 8, 2002, he argued that the

NTA alone was insufficient because it did not provide the specific time and date

of the removal hearing. Garcia–Perez further argued that he had not received

the information concerning the removal proceedings in his native Spanish

language. Garcia–Perez claimed that he had not received a copy of either the

NOH or the in absentia removal order and argued that the government was

required to serve all notices and orders in person or by certified mail. Moreover,

in a declaration attached to the motion, Garcia–Perez stated that, at the time of

his detention in 2002, his address had been 1754 High Avenue, Long Beach,

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California. Based on the foregoing, Garcia–Perez urged the IJ to reopen and

rescind the 2002 removal order for lack of proper notice.

Garcia–Perez also urged the IJ to reopen the removal order so that he

could apply for asylum and withholding of removal. In addition to the

declaration, Garcia–Perez attached to his motion an Application for Asylum and

for Withholding of Removal (“Application”) and various secondary accounts of

the treatment of homosexuals in Honduras. Through the declaration and the

Application, Garcia–Perez explained that in Honduras he had been persecuted

and tortured because he is a homosexual.

The IJ denied the motion on September 7, 2011, rejecting both of

Garcia–Perez’s grounds for relief. Relying on 8 C.F.R. § 1003.23(b)(4)(ii), the IJ

concluded that the notice provided to Garcia–Perez was legally sufficient and

that therefore the motion to reopen and rescind on that basis was untimely. 

Although the IJ noted that Garcia–Perez had provided “chilling details,” the IJ

concluded that, because the incidents recounted in the declaration and the

Application happened before Garcia–Perez’s entry into the United States in

1999, those incidents did not constitute “changed country conditions” under 8

C.F.R. § 1003.23(b)(4)(i). The IJ also found that the evidence was not credible,

noting that Garcia–Perez had a history of providing false information to United

States immigration authorities. 

On August 10, 2012, the BIA affirmed, without opinion, the decision of the

IJ. Garcia–Perez timely appealed. See 8 U.S.C. § 1252(b)(1) (“The petition for

review must be filed not later than 30 days after the date of the final order of

removal.”).

II.

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Where, as here, a petitioner appeals a denial of a motion to reopen, we

apply a highly deferential abuse-of-discretion standard. Gomez–Palacios v.

Holder, 560 F.3d 354, 358 (5th Cir. 2009). Under this standard, we must affirm

as long as the decision below was not “capricious, without foundation in the

evidence, or otherwise so irrational that it is arbitrary rather than the result of

any perceptible rational approach.” Id. Because the BIA summarily affirmed

the opinion of the IJ, we consider the factual findings and legal conclusions of

the IJ. Eduard v. Ashcroft, 379 F.3d 182, 186 (5th Cir. 2004). We review

findings of fact for substantial evidence, meaning that we must accept the IJ’s

findings unless the evidence compels a contrary conclusion. Bolvito v. Mukasey,

527 F.3d 428, 435 (5th Cir. 2008). We review questions of law de novo, though

we defer to the IJ’s interpretation of immigration regulations if the

interpretation is reasonable. Id.

III.

When initiating removal proceedings against an alien, the government

must provide the alien with notice of any removal hearing, either in person or

by mail if personal service is not practicable. 8 U.S.C. § 1229(a)(1). The notice

must specify: 

(A) The nature of the proceedings against the alien.

(B) The legal authority under which the proceedings are

conducted.

(C) The acts or conduct alleged to be in violation of law.

(D) The charges against the alien and the statutory provisions

alleged to have been violated.

(E) The alien may be represented by counsel . . . .

(F) (i) The requirement that the alien must immediately

provide . . . a written notice of an address . . . at which

the alien may be contacted . . . .

(ii) The requirement that the alien must provide . . . a

written record of any change of the alien’s address . . . .

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(iii) The consequences under section 1229a(b)(5) of this title

of failure to provide address . . . information pursuant

to this subparagraph.

(G) (i) The time and place at which the proceedings will be

held.

(ii) The consequences under section 1229a(b)(5) of this title

of the failure, except under exceptional circumstances,

to appear at such proceedings.

§ 1229(a)(1)(A)–(G). If the immigration court subsequently reschedules the time

or location of the removal hearing, the government must notify the alien, in

writing, of the new time or location and of the consequences of failing to appear.

§ 1229(a)(2)(A). Where an alien has failed to keep the immigration court

apprised of his most current mailing address, however, the government is not

obligated to provide notice of any change in the time or location of the removal

hearing. § 1229(a)(2)(B). 

Under 8 U.S.C. § 1229a(b)(5)(A), an alien who fails to appear at a removal

hearing after written notice has been provided shall be ordered removed in

absentia if the government establishes by clear, unequivocal, and convincing

evidence that the written notice was so provided and that the alien is removable. 

For purposes of this section, written notice is considered sufficient if it was

provided at the most recent address reported by the alien. § 1229a(b)(5)(A). But

no written notice is required in order for the IJ to enter an in absentia order if

the alien has failed to report his address as required by § 1229(a)(1)(F).

§ 1229a(b)(5)(B).

Motions to reopen and rescind in absentia removal orders generally must

be filed within 90 days of the date of the final order of removal.

§ 1229a(c)(7)(C)(i). Congress has created several exceptions to this general time

limitation, allowing otherwise untimely motions where the alien “did not receive

notice” of the removal hearing in accordance with § 1229(a)(1) and (2), see

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§ 1229a(b)(5)(C)(ii), and where the alien seeks to apply for asylum based on

changed country conditions, see § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.23(b)(4)(i). 

Garcia–Perez invokes both of these exceptions. We address each in turn.

A.

To establish the applicability of the exception provided in

§ 1229a(b)(5)(C)(ii), Garcia–Perez must demonstrate that he “did not receive

notice” as required by § 1229(a)(1) and (2). Garcia–Perez advances a single

argument on appeal: that when the NTA was served on him on October 8, 2002,

he did not receive notice, in Spanish, of the requirement that he keep the

immigration court informed of his address or of the consequences of failing to

appear.2 We are not persuaded. 

The NTA, which was signed by both Garcia–Perez and a Border Patrol

agent, states that Garcia–Perez was provided oral notice in Spanish of the time

and place of his hearing and of the consequences of failing to appear. The IJ

found as a matter of fact that Garcia–Perez had received this notice in Spanish,

and we see no evidence in the record that compels a contrary conclusion. See

Bolvito, 527 F.3d at 435. Moreover, following the receipt of the NTA, the October

23, 2002, NOH (scheduling the December 2, 2002, removal hearing) was served

by mail to Garcia–Perez’s last reported address, 915 Freeman Avenue. Even

assuming that Garcia–Perez’s address was actually 1754 High Avenue, the

evidence before the IJ established thatGarcia–Perez either provided an incorrect

address (i.e., 915 Freeman Avenue instead of 1754 High Avenue) or failed to

keep the immigration court apprised of his current address (i.e., 1754 High

Avenue). See Gomez–Palacios, 560 F.3d at 361 (where an alien claims to have

2 Although Garcia–Perez advanced several other arguments in his motion to reopen and

rescind, he has abandoned them on appeal. These are arguments are therefore precluded. See

Mapes v. Bishop, 541 F.3d 582, 584 (5th Cir. 2008) (“Although pro se briefs are afforded liberal

construction . . . even pro se litigants must brief arguments in order to preserve them.”).

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not actually received notice, the alien’s failure to keep the government apprised

of his address is grounds for denying a motion to reopen and rescind under

§ 1229a(b)(5)(C)(ii)).3

B.

There is no time limit on filing a motion to reopen a removal order for the

purpose of applying for asylum or withholding of removal. § 1229a(c)(7)(C)(ii);

8 C.F.R. § 1002.23(b)(4)(i). To establish the exception, a petitioner must provide

evidence of “changed country conditions arising in the country of nationality or

the country to which removal has been ordered, if such evidence is material and

was not available and would not have been discovered or presented at the

previous proceeding.” § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1002.23(b)(4)(i). The

petitioner must show a change in country conditions since the time of the prior

removal hearing. See § 1229a(c)(7)(C)(ii); see also Thomas v. Holder, 396 F.

App’x 60, 61 (5th Cir. 2010) (unpublished but persuasive); Janfeshan v.

Mukasey, 303 F. App’x 189, 190 (5th Cir. 2008) (unpublished but persuasive). 

The motion must (1) state the new facts that will be proven at a hearing to be

held if the motion is granted; (2) be supported by affidavits or other evidentiary

material; and (3) be accompanied by the appropriate application for relief and

all supporting documentation. 8 C.F.R. § 1003.23(b)(3). If the petitioner cannot

make the proper showing, the motion to reopen is subject to the general 90-day

limitation. See § 1229a(c)(7)(C)(i).

In his motion filed nearly nine years after the December 2, 2002, removal

hearing, Garcia–Perez fails to demonstrate that the evidence of the conditions

in Honduras was not available and would not have been discovered prior to that

3 Garcia–Perez does not contend that he never received the October 18, 2002, NOH

(scheduling the removal hearing for October 29, 2002) that was delivered to the detention

facility in New Orleans. Garcia–Perez does not attempt to explain why he failed to appear on

October 29, 2002.

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hearing. As the IJ observed, the evidence submitted in the declaration and the

Application relates to incidents that occurred before Garcia–Perez left Honduras. 

Moreover, the motion to reopen states only that Garcia–Perez fears being

tortured or killed if he returns to Honduras and that Honduras’s “country

conditions” reports show that homosexuals are persecuted by the government.4

Read together with the declaration and the Application, these “country

conditions” reports—presumably, the secondary accounts attached to the

motion—do not contain new facts that would support a grant of asylum. The

alleged country conditions existed prior to the date of the removal hearing, as

explicated in detail by Garcia–Perez. The law requires a petitioner to show

changed conditions in order to reopen a removal proceeding. Garcia–Perez had

the opportunity to assert the basis for asylum or withholding of removal nine

years before he filed his motion to reopen; he therefore cannot avail himself of

§ 1229a(c)(7)(C)(ii). Accordingly, the IJ’s decision was not “without foundation

in the evidence” or “arbitrary rather than the result of any perceptible rational

approach.” See Gomez–Palacios, 560 F.3d at 358; see also Ojeda–Calderon v.

Holder, 2013 WL 4029146, at *3, __ F.3d __ (5th Cir. Aug. 8, 2013) (“[A]n

‘Immigration Judge has discretion to deny a motion to reopen even if the moving

party has established a prima facie case for relief.’” (quoting 8 C.F.R. §

1003.23(b)(3))). 

IV.

Garcia–Perez has failed to establish that he did not receive proper notice

or that he is eligible for asylum or withholding of removal based on changed

country conditions. We therefore conclude that the IJ did not abuse its

4 Garcia–Perez also quotes extensively from Joseph v. Holder, 600 F.3d 1235 (9th Cir.

2010), to refute the IJ’s conclusion that his statements were not credible. Because the IJ did

not abuse its discretion in concluding that Garcia–Perez failed to establish changed conditions,

we do not address Garcia–Perez’s credibility.

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discretion in denying Garcia–Perez’s motion to reopen and rescind the in

absentia removal order entered on December 2, 2002. We DENY the petition.

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