Alfredo Benites-Fernandes v. Jefferson Sessions, I , 698 F. App'x 234 ( 2017 )


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  •      Case: 16-60802      Document: 00514186798         Page: 1    Date Filed: 10/06/2017
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    No. 16-60802
    Fifth Circuit
    FILED
    Summary Calendar                        October 6, 2017
    Lyle W. Cayce
    ALFREDO ALEXANDER BENITES-FERNANDES,                                            Clerk
    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. A200 683 747
    Before BENAVIDES, CLEMENT, and GRAVES, Circuit Judges.
    PER CURIAM: *
    Alfredo Alexander Benites-Fernandes, a native and citizen of Honduras,
    seeks review of a decision by the Board of Immigration Appeals (BIA) affirming
    the denial by an immigration judge (IJ) of his motion to reopen removal
    proceedings. Alleging that he did not receive notice of the hearing at which he
    was ordered removed in absentia, Benites-Fernandes contends that the denial
    of his motion constitutes reversible error. In addition, he asserts in a single
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-60802   Document: 00514186798    Page: 2    Date Filed: 10/06/2017
    No. 16-60802
    sentence that the IJ erred in ruling that he had not made a prima facie showing
    of his entitlement to withholding of removal and in not permitting him to
    pursue his claim. He has not challenged the refusal by the IJ and BIA to sua
    sponte reopen the proceedings, and any such argument is abandoned. See
    Soadjede v. Ashcroft, 
    324 F.3d 830
    , 833 (5th Cir. 2003).
    With respect to the denial of the motion to reopen based on a lack of
    notice, we review such a ruling under “a highly deferential abuse-of-discretion
    standard.” Gomez-Palacios v. Holder, 
    560 F.3d 354
    , 358 (5th Cir. 2009). We
    review questions of law de novo and factual findings for substantial evidence.
    
    Id. Benites-Fernandes has
    not shown that the IJ and BIA abused their
    discretion in denying his motion to reopen. See 
    id. The immigration
    courts
    correctly applied the slight presumption of delivery applicable to notices sent
    via regular mail. See Matter of M-R-A-, 24 I. & N. Dec. 665, 672-73 (BIA 2008).
    In his affidavit, the only evidence presented in support of his assertion of non-
    receipt, Benites-Fernandes asserted that he had failed to receive the notice
    because his “sponsor” had died. As the IJ and BIA found, the record reflected
    that the notice of hearing was sent to the address provided by Benites-
    Fernandes to immigration officials, which was not the same address as that
    listed for his “sponsor.”     Benites-Fernandes does not explain how his
    “sponsor’s” death would affect a notice sent to an address provided by Benites-
    Fernandes himself, which was not that of the “sponsor.” In addition, although
    Benites-Fernandes asserted that his “sponsor” died in 2011, the notice of
    hearing was sent by regular mail in November 2010. The evidence presented
    does not compel a conclusion that Benites-Fernandes did not receive the notice
    of hearing. See Ojeda-Calderon v. Holder, 
    726 F.3d 669
    , 672-73 (5th Cir. 2013).
    2
    Case: 16-60802     Document: 00514186798      Page: 3   Date Filed: 10/06/2017
    No. 16-60802
    As for Benites-Fernandes’s challenge to the denial of his request for
    withholding of removal, his single sentence within the brief, with no reasons
    for his assertion of error and no citations to the record or to legal authorities,
    is inadequately briefed. See FED. R. APP. P. 28(a)(8)(A). Moreover, although
    Benites-Fernandes asserts that the IJ erred in her denial of relief, the BIA
    concluded that Benites-Fernandes was not entitled to withholding of removal
    on different grounds than those found by the IJ; thus, we would not review the
    IJ’s ruling on this issue. See Mikhael v. INS, 
    115 F.3d 299
    , 302 (5th Cir. 1997).
    Even if we were to construe Benites-Fernandes’s brief as challenging the BIA’s
    adverse ruling, he would not be entitled to relief. The time limitations on filing
    a motion to reopen do not apply if the reason for the motion is to seek
    immigration relief based on a change in the conditions of the country of
    nationality, assuming that the evidence was material and was not available or
    discoverable   at    the   time   of   the   previous   proceeding.     8   U.S.C.
    § 1229a(c)(7)(C)(ii). Benites-Fernandes’s application for relief, which asserted
    only that his family members in Honduras had faced extortion and gang
    threats, resulting in death and injury to some individuals, did not compare the
    current conditions to those existing at the time that the original removal
    hearing was scheduled; he therefore has not shown a material change in
    country conditions. See Ramos-Lopez v. Lynch, 
    823 F.3d 1024
    , 1026 (5th Cir.
    2016). As he has not made a prima facie case for relief, the BIA was within its
    discretion to deny the motion to reopen. See Matter of Coelho, 20 I. & N. Dec.
    464, 471 (BIA 1992); accord INS v. Doherty, 
    502 U.S. 314
    , 323 (1992).
    Accordingly, the petition for review is DENIED.
    3