### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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 , s eeks review of a decision from the Board of Immigration Appeals (“BIA”). In 2011, Garcia–Perez filed a motion to r eopen and rescind an in absentia removal o rder that was issued against him in 2 002. The Immigration Judge (“IJ”) d enied the m otion, and th e Board of Immigration Appeals (“BIA”) affirmed without opinion. In this pending p e tition, 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 U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D October 7, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-60691 Document: 00512399572 Page: 1 Date Filed: 10/07/2013No. 12-60691

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 o f H ond u r a s a n d is not a citizen of the United S t a tes. On February 6, 1999, Garcia–Perez attempted to enter the country illegally near Brownsville, Texas, w here he was appre h ended by the United States Border Patrol. Garcia–Perez claimed to b e Mexican; accordingly, the Border P atrol transported him to Mex i c o . S o on thereafter, however, the Mexican authorities returned him across the border, a dvising the Border Patrol that G arcia–Perez w as in fact Hondura n . T he government did not initiate removal proceedings, and Garcia–Perez was released. The Border Patrol again apprehended and detained G arcia–Pere z on October 8, 2 002, in N ew Orleans, Louisiana. T he Immigration and Naturalization Serv i c e ( “ INS”) issued a Notice t o Appear (“NTA”) against Garcia–Perez on October 8, 2002. 1 The same day, Garcia–Perez was p e rsonally served with the NTA, which h e signed “Manuel Garcia.” A Border Patrol agent also signed the NTA. Immediately a b ove Garcia–Perez’s signature, the NTA indicat e d t h at Garcia–Perez had been provided oral notice, in the Spanish language, of the location of his hearing (i.e., N e w Orleans) and of the
consequences o f a f

ailure to appear. The NTA a lso warned G arcia–Perez that he was required to report his mailing address and any subsequent changes in his mailing address.

1 The N TA s tated that G arcia–Perez was an alien p res ent in the U nited States w ho had not been ad m itted or p aroled

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On O ctober 1 8, 2002, the i mmigration court m a iled a Notice of Hearing (“NOH”) to Garcia–Perez at the INS detention facility in New O rleans, where he

was detained a t the t ime, informing him that the re m ov al hearing was s cheduled for October 29, 2 002. Upon being released on bond on October 22, 2002, G arcia–Perez r eported his a ddress as 915 Freeman Avenue, Long Beac h , California. An INS official certified that he had (1) p r ovided Garcia–Perez with

a Change o f Address f

orm a nd (2) notified Garcia–Perez that h e 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, reschedulin g t h e r e m oval h earing for December 2, 2002. The NOH was not returned as undeliverable. Garcia–Perez failed t o appear at the December 2, 2002, hearing, prompting the IJ to issue an in absentia order o f r emoval. T he order was mailed to Garcia–Perez at 915 Freeman Avenue and was n ot returned as undeliverable. Nearly nine y ears l ater, on August 5, 2011, Garcia–Perez filed w ith the IJ

a motion to reopen and rescind the 2002 removal order. Although Garcia–Perez conceded that he h ad received the NTA on October 8, 2002, he argued that the NTA alone was insufficient because it di d not provide the specific time and date of the removal hearing. Garcia–Perez further argued that he had not received the information concerning the r emoval proceedings in his native Spanish language. Garcia

– P e r e z c l a i med that he had not received a copy of either the NOH or the in absentia removal order and argued that the governm e n t was required to serve all notices and orders in person or by c ertified mail. Moreover, in a declaration attached to the motion, Garcia–Perez s t ated th at, at the time of his d e tention in 2002, his a ddress had been 1754 High Avenue, Long Beach,

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California. Bas e d o n the foregoing, Garcia–Perez urged the IJ to reopen and rescind the 2002 removal order for lack of proper notice. Garcia–Perez al s o u r ged the IJ to reopen th e removal order so that he could apply for a s y l u m and withholding of removal. In addition to the declaration, Garcia–Perez attached to his motion an Application f or Asylum and f o r Withholding o f Removal (“Application”) a nd v arious s e condary accoun t s o f the t reatment o f homosexuals in H o n d u r a s . Through the declaration and the Application, Garcia–Perez e xplained that in Honduras he had been persecuted and tortured because he is a homosexual. The IJ denied the motion on September 7, 2 011, rejecting b o t h of Garcia–Perez’s grounds for relief. Relying on 8 C.F.R. § 1003.23(b)(4)(ii), the IJ concluded that the n otice provided to G arcia– P erez was legally sufficient and that therefore the motion t o reop e n and rescind on that basis was untimely. Although the IJ noted that Garcia–Perez had provided “chilling details,” the IJ concluded that, because the i n c i d e nts recounted in the declaration and the Ap p lication happened before Garcia–Perez’s entry into the United S tates i n 1999, those i n c idents did n ot constitute “changed country conditions” under 8 C.F.R. § 1003.23(b)(4)(i). The IJ also found that the e vidence was not credible, noting that G arcia–Perez h ad 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 b e filed not later tha n 3 0 d a y s after the date o f the final order of removal.”). I I.

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Wh ere, as here, a petitioner appeals a d enial of a motion to r e o p e n , w e apply a h i ghly d eferential abuse-of-discretion standard. Gomez–Palacios v. Holder , 560 F.3d 354, 358 (5th Cir. 2009). U nder this standard, we must affirm

as long as the d ecision b elow was not “capricious, without foundati o n in the evidence, or otherwise s o irrational that it is arbitrary rather than the result of
any perceptible rational approach.” Id. Because the BIA s ummarily affirmed the opinion of the IJ, we consider the factual findings a nd l e g a l c o n c lusions of the IJ. Ed u a r d v . A s hcroft , 379 F.3d 182, 1 86 (5th Cir. 2 004). We review findings of fact for substantial evidence, meaning that we must accept the IJ’s findings unless the evidence compels a contrary c o nclusion. Bolvito v. Mukasey , 527 F.3d 428, 435 (5th Cir. 2008). We review questions of law de novo , though

we d efer to the I J ’ s i n terpretation of immigration regulations if the interpretation is reasonable. Id. III. When initiating r emoval proceedings against an alien, the government

mus t p r o v i d e the alien with n otice of any removal hearing, either i n person or by m ail 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) T h e legal authority u nder which the proceedings a re conducted. (C) The acts or conduct alleged to be in violation of law. (D) The charges against the alien and the statuto r y provisions alleged to have been violated. (E) The alien may be represented by counsel . . . . (F) (i) T h e r e q u i r e m e n t t h a t t h e a l i e n m u s t i m m e d i a t e l y

provide . .

. a written notice of an address . . . at which the alien may be contacted . . . . (ii) T h e r e q u irement that the alien must prov i d e . . . a written record of any change of the alien’s address

. . . .

5 Case: 12-60691 Document: 00512399572 Page: 5 Date Filed: 10/07/2013No. 12-60691 (iii) The consequences under section 1229a(b)(5) of this title of f a i l ure to provide address

. . . information pursuant to this subparagraph. (G) (i) T h e t i me and place a t which the proceed i n g s w i l l b e

held. (ii) The consequences under section 1229a(b)(5) of this title of the failure, except under exceptional circumstances, to appear at such proceedings. § 1 229(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, o f the new time or location and o f the consequences of failing t o appear. § 1229(a)(2)(A). Where an alien h a s f a iled to keep the i m migration court apprised of his most current mailing a ddress, however, the government is not obligated to provide notice of any change i n 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 a t a removal h e a r i n g after written notice has been provided shall be ordered remove d i n abs e n t i a if the government e stablishes by clear, unequivocal, and convincing evidence that the written n otice was so provided and that the alien is removable. For purposes of this section, written n o tice i s considered su f f icient if it was provided at the most recent a ddress reported by the alien. § 1 229a(b)(5)(A). But no written notice is required in order for the I J to enter an in absentia order if the alien has failed t o r eport 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 wit h i n 90 days of the date of the final order o f r emoval. § 1229a(c)(7)(C)(i). Congress has created several e xceptions to this general time limitation, allowing otherwise untimely motions where the alien “did not receive notice” of the r em o v a l h earing in accordance with § 1229(a)(1) and (2), see

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§ 1229a(b)(5)(C)(ii), and w here the alien seeks to apply f or asylum b ased on changed country conditions, s ee§ 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 applicabili t y o f the exception provided in § 1229a(b)(5)(C)(ii), Garcia–Pe r e z must d e monstrate that he “did not receive

n o t ice” as required by § 1229(a)(1) and (2). Garcia–Perez advances a sin g l e argument on appeal: that when the NTA was served on h im on O c tober 8, 2002, he did not r e c e i v e notice, in Spanish, of the requirement that he k eep the immigration court informed of his addre s s or of the consequences of failing to appear. 2We are not persuaded. The NTA, which was signed by both Garcia–Perez and a Border Patrol agent, states that G a rcia–Perez was provided oral notice in Spanish of the time and p lace of his h earing and of t h e c o n s e q u e n ces of failing t o appear. The IJ found as a matter o f fact that Garcia–Perez h ad received this notice i n Spanish, and w e see n o e vidence i n the record that c ompels a contrary c onclusion. See Bolvito , 527 F .3d at 435. Moreover, following the r eceipt of the NTA, the October 23, 2 002, NOH (scheduling the December 2 , 2002, removal hearing) was served by m ail t o Garcia–Perez’ s last reported address, 915 Freeman Avenue. Even assuming that Garcia–Perez’s address was actually 1754 High Ave n u e, the evidence before the I J e s t ab li s h e d th at G arc i a

–P e r e z e ith e r provided an incorrect address (i.e

. , 9 15 Freeman Avenue instead o f 1754 High Avenue) or failed to keep the i mmigration court apprised o f his c urrent addre s s (i

. e . , 1754 High Avenue). See Gomez–Palacios , 560 F.3d at 361 (where an a lien claims to have

2 Although G arcia–Perez advanced s everal other argum ents in his mo t i o n to reop en and res cind , he has aband oned them on ap p eal. Thes e are argum ents are theref ore p reclud ed

. See M a p es v . Bi shop , 541 F. 3d 582, 584 ( 5th Cir. 2008) ( “Although p ro s e briefs are af f ord ed liberal cons truction

. . . even p ro s e litigants m us t brief argum ents in ord er to p res erve them

. ”)

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not actually received notice, the alien’s failure to k eep the government apprised of his a ddress is gr ounds for denying a m otion t o reopen and r e s cind under § 1229a(b)(5)(C)(ii)). 3 B. There is no time l imit on filing a motion t o r eopen a r emoval 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 a rising in the country o f nationality or the country to which removal has been ordered, if such evidence is material and

w a s n o t available and w ould not h ave been discovered or presented at t h e previous proceeding.” § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1002.23(b)(4)(i). T he petitioner must show a change in country c onditions s ince the time of the prior removal hearing. See § 1229a(c)(7)(C)(ii); se e a ls o T h omas v. Holder , 396 F. App’x 60, 61 ( 5th Cir. 2010) (unpublis h e d b u t persuasive); J anfeshan v. Mukasey , 303 F. App’x 189, 1 9 0 ( 5 t h Cir. 2008) (unpublished but persuasive). The motion must (1) state the new f a c t s that will be proven at a hearing to be held if the motion is granted; (2) be supported by affidavits or other e videntiary material; a nd (3) be accompanied b y the appropriate application for relief and all supporting documentation. 8 C.F.R. § 1003.23(b)(3). I f the petitioner cannot make the p roper 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 y ears 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 n ot have been discovered prior to that

3 G arcia–Perez d oes not contend that he n e ve r r e c eived the O ctober 18, 2002, N O H ( s ched uling the rem oval hearing f or O ctober 29, 2002) that was d elivered t o t h e d e tention f acility in N ew O rleans

. G arcia–Perez d oes not attem p t to exp lain w hy he f ailed to ap p ear on O ctober 29, 2002. 8 Case: 12-60691 Document: 00512399572 Page: 8 Date Filed: 10/07/2013No. 12-60691

hearing. As the IJ observed, the evidence submitted i n the declaration and the Ap p li c ati o n r e l at e s t o i n c i d e nt s that occurred before Garcia–Perez l e f t H o n du r a s . Moreover, the motion to reopen states o nly that Garcia–Perez fears being tortured or killed if he r eturn s t o Honduras and that Honduras’s “country conditions” r eports show that homosexuals are persecuted by the government. 4 Read togethe r w ith the d eclaration and the Application, these “country conditions” reports—presumably, the secondary accounts attached to the motion—do not contain new facts that w o u l d s u p p o rt a grant of asylum. The alleged country c onditions e xisted p rior t o t h e d a te of the removal hearing, as explicated in d etail by Garcia–Perez. The l a w r e q u ires a p etitioner to show changed conditions in order to reopen a removal proceeding. Garcia–Perez had the o p p o r t u n ity t o assert the basis for asylum or withholding o f removal nine
years before he filed his motion to reopen; he therefore c a n not 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; s e e a lso 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 h as 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 r emo v a l b a s e d on changed country conditions. We therefore conclude th a t t h e I J did not abuse its

4 G arcia–Perez als o quotes extens ively f rom Josep h v . H

ol der , 600 F. 3d 1235 ( 9th Cir. 2010) , to ref

ute the IJ’s conclus ion that his s tatem ents w ere not cred ible. Becaus e the IJ d id not abus e its d is cretion in conclud ing that G arcia–Perez failed to es tab li sh changed cond itions , w e d o not ad d res s G arcia–Perez’s cred ibility. 9 Case: 12-60691 Document: 00512399572 Page: 9 Date Filed: 10/07/2013No. 12-60691

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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