Alvarez-Espinal v. Garland ( 2021 )

Case: 20-61039 Document: 00516148552 Page: 1 Date Filed: 12/29/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 29, 2021
No. 20-61039 Lyle W. Cayce
Summary Calendar Clerk
Lois Vanessa Alvarez-Espinal,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A098 993 518
Before Owen, Chief Judge, and Southwick and Wilson, Circuit
Judges.
Per Curiam:*
Lois Vanessa Alvarez-Espinal, a native and citizen of Honduras, has
petitioned for review of an order of the Board of Immigration Appeals (BIA)
dismissing her appeal and upholding the denial of her motion to reopen
removal proceedings. We review the denial under a highly deferential abuse-
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 20-61039
of-discretion standard. Nunez v. Sessions, 882 F.3d 499, 505 (5th Cir. 2018)
(per curiam). The BIA’s decision will be upheld if it is not capricious,
irrational, or without foundation in the evidence and does not rely on legally
incorrect interpretations of statutes or regulations or on unexplained
departures from regulations or established policies. Ramos-Portillo v. Barr,
919 F.3d 955, 958 (5th Cir. 2019). We review conclusions of law de novo and
findings of fact for substantial evidence. See Orellana-Monson v. Holder, 685
F.3d 511, 517-18 (5th Cir. 2012).
Alvarez-Espinal asserts that the BIA erred in upholding the denial of
her motion to reopen because she was not properly served with a sufficient
notice to appear (NTA) and did not receive adequate notice of the removal
hearing. She alleges that the NTA, which omitted a specific date or time for
the initial hearing, was not a valid charging document and did not provide
proper notice of the removal proceedings. She further maintains that
personal service of the NTA on her was ineffective because she was only
fifteen years old at the time and argues that her due process rights were
violated.
Her claim that the NTA was not a valid charging document because it
did not state the time and date of a removal hearing lacks merit. See Maniar
v. Garland, 998 F.3d 235, 242 & n.2 (5th Cir. 2021). Also, because Alvarez-
Espinal did not give any address information, she was not entitled to written
notice of the removal hearing and may not request recission of the in absentia
removal order due to the alleged inadequacy of the notice that she received.
See 8 U.S.C. § 1229a(b)(5)(B); see also 8 U.S.C. § 1229(a)(1)(F)(i). She has
offered no support for her claim that her age makes her case distinguishable,
and the BIA regulation as to service-of-notice requirements for immigration
matters states that service on an adult is required only if the minor is under
fourteen years of age. See 8 C.F.R. § 103.8(c)(ii); Lopez-Dubon v. Holder, 609
F.3d 642, 645-46 (5th Cir. 2010). She otherwise has not alleged a due process
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No. 20-61039
violation on this or any other ground based on the facts of this case. See Luna-
Garcia v. Barr, 932 F.3d 285, 292-93 (5th Cir. 2019), cert. denied, 141 S. Ct.
157 (2020); Lopez-Dubon, 609 F.3d at 646-47; Gomez-Palacios v. Holder, 560
F.3d 354, 361 n.2 (5th Cir. 2009).
Alvarez-Espinal also argues that the BIA erred in upholding the denial
of her motion to reopen because she provided sufficient evidence of changed
country conditions in Honduras. She asserts that she offered ample evidence
that homicide and violence against women have substantially increased and
alleges that the BIA disposed of her claim without much explanation.
On appeal, she fails to present a detailed argument as to how country
conditions have materially changed and does not meaningfully compare the
conditions at the time of her order of removal with those at the time of her
motion to reopen. See Nunez, 882 F.3d at 508-09; Ramos-Lopez v. Lynch, 823
F.3d 1024, 1026 (5th Cir. 2016). The record does not otherwise establish that
the BIA’s decision lacked foundation in the evidence, see Ramos-Portillo, 919
F.3d at 958, or that the evidence compels a contrary conclusion, see Orellana-
Monson, 685 F.3d at 518. The records offered by Alvarez-Espinal reflect that
there is some evidentiary foundation for the determination that any increase
in violence against women was incremental and not materially different. See
Nunez, 882 F.3d at 508-09. The BIA’s explanation for disposing of Alvarez-
Espinal’s claim of changed country conditions, although brief, was sufficient.
See Roy v. Ashcroft, 389 F.3d 132, 139 (5th Cir. 2004) (per curiam).
Accordingly, the petition for review is DENIED.
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