observing with respect to OPPM 97-2 that that “[n]ot all agency publications are of binding force”
How later courts described this case
- observing with respect to OPPM 97-2 that that “[n]ot all agency publications are of binding force”
Written by the judges who cited it.
The opinion
Case: 15-60912 Document: 00513975556 Page: 1 Date Filed: 05/02/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-60912 FILED
Summary Calendar May 2, 2017
Lyle W. Cayce
Clerk
CARLOS ELIU GARCIA-MEMBRENO,
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. A078 996 943
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
Petitioner Carlos Eliu Garcia-Membreno, a native and citizen of
Honduras, has filed a petition for review of the order of the Board of
Immigration Appeals (BIA) upholding the denial of his motion to reopen. The
immigration judge (IJ) ordered Garcia-Membreno removed in absentia after he
failed to appear at his removal hearing on May 6, 2003, and Garcia-
Membreno’s motion to reopen sought rescission of the removal order.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-60912 Document: 00513975556 Page: 2 Date Filed: 05/02/2017
No. 15-60912
In this court, Garcia-Membreno argues that a deficiency in the certificate
of service for the hearing notice establishes that he did not receive proper
notice of the May 6, 2003 hearing. Citing Interim Operating Policies and
Procedures Memorandum No. 97-2: Notices of Immigration Judge Hearings
(OPPM 97-2), he asserts that the certificate of service for the hearing notice
was incomplete because it did not indicate how service was made, as neither of
the two choices, “mail” or “personal service,” was marked by court personnel.
We review the order of the BIA and will consider the IJ’s underlying
decision only if it influenced the determination of the BIA. Gomez-Palacios v.
Holder, 560 F.3d 354, 358 (5th Cir. 2009). Questions of law are reviewed de
novo, but we accord “deference to the BIA’s interpretation of immigration
statutes unless the record reveals compelling evidence that the BIA’s
interpretation is incorrect.” Id. The BIA’s factual findings are reviewed for
substantial evidence. Id. Under the substantial-evidence standard, we “may
not overturn the BIA’s factual findings unless the evidence compels a contrary
conclusion.” Id.
Written notice of a change in the time or place of a removal proceeding
should be personally served “or, if personal service is not practicable, through
service by mail to the alien or to the alien’s counsel of record.” 8 U.S.C.
§ 1229(a)(2). The notice requirement “is satisfied if proper notice is provided
at the most recent mailing address provided by the alien.” Gomez-Palacios,
560 F.3d at 358. Service of notice by mail creates a rebuttable presumption
that the notice was delivered and actually received by the person to whom it
was addressed. Hernandez v. Lynch, 825 F.3d 266, 269 (5th Cir. 2016).
An order of removal entered in absentia 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 § 1229(a)(2). 8 U.S.C. § 1229a(b)(5)(C)(ii).
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No. 15-60912
We review the denial of Garcia-Membreno’s motion to reopen under a highly
deferential abuse-of-discretion standard and will “affirm the BIA’s decision as
long as it is not capricious, without foundation in the evidence, or otherwise so
irrational that it is arbitrary rather than the result of any perceptible rational
approach.” See Gomez-Palacios, 560 F.3d at 358.
Garcia-Membreno has not demonstrated that the BIA abused its
discretion on this issue. First, substantial evidence supports the BIA’s finding
that Garcia-Membreno actually received the written notice of the May 6, 2003
hearing. The certificate of service on the notice was signed by the court clerk
and indicated that the notice was served on Garcia-Membreno on February 27,
2003. Absent from Garcia-Membreno’s affidavit supporting his motion to
reopen was any statement indicating that he did not in fact receive the notice,
and Garcia-Membreno does not make any such assertion here.
To obtain rescission of his in absentia removal order, Garcia-Membreno
had the burden of demonstrating that he did not “receive” notice of the May 6,
2003 hearing in accordance with § 1229(a)(2). See § 1229a(b)(5)(C)(ii). “[T]he
word ‘receive’ clearly shows that the focus of the rescission inquiry . . . is on the
actual receipt of the required notice and not whether the notice was properly
mailed.” Gomez-Palacios, 560 F.3d at 360.
Asserting that there is no evidence that the hearing notice was actually
sent by mail, Garcia-Membreno contends that the rebuttable presumption of
effective service by mail does not apply in his case. However, given that he did
not dispute actually receiving the notice, substantial evidence supports the
BIA’s finding that service of the notice was effectuated either by regular mail
or personal service as required by § 1229(a)(2) and that, if done by mail, the
presumption of effective service for regular mail applied and was not overcome.
Accordingly, the BIA did not abuse its discretion in upholding the denial of
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No. 15-60912
Garcia-Membreno’s motion to reopen with respect to the lack of proper notice.
See Gomez-Palacios, 560 F.3d at 361.
Garcia-Membreno’s reliance on OPPM 97-2 does not change the result.
“[N]ot all agency publications are of binding force.” Lyng v. Payne, 476 U.S.
926, 937 (1986). “Generally, to be legally binding on an agency, its own
publications must have been promulgated pursuant to a specific statutory
grant of authority and in conformance with the procedural requirements
imposed by Congress.” Coliseum Square Ass’n v. Jackson, 465 F.3d 215, 229
(5th Cir. 2006) (internal quotation marks omitted and citations omitted).
Garcia-Membreno presents no argument that OPPM 97-2 qualifies as a legally
binding publication, and he has thus waived any such argument. See
Chambers v. Mukasey, 520 F.3d 445, 448 n.1 (5th Cir. 2008).
In addition, Garcia-Membreno argues that his due process rights were
violated because the IJ did not consider the motion for change of venue that he
filed prior to the May 6, 2003 hearing. Asserting that the motion requested a
venue change so he could be represented by counsel of his choice, Garcia-
Membreno further contends that he was denied the right to counsel.
The mere filing of a motion for a change of venue did not relieve Garcia-
Membreno of the responsibility to appear at the May 6, 2003 hearing. See Patel
v. INS, 803 F.2d 804, 806 (5th Cir. 1986). In any event, Garcia-Membreno
cannot establish a due process violation because there is no liberty interest at
stake in a motion to reopen due to the discretionary nature of the relief sought.
See Gomez-Palacios, 560 F.3d at 361 n.2; Altamirano-Lopez v. Gonzales, 435
F.3d 547, 550-51 (5th Cir. 2006).
The petition for review is DENIED.
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