Alfredo Benites-Fernandes v. Jefferson Sessions, I

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. ...

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