Melsi Garcia Nunez v. Jefferson Sessions, III

Case: 16-60140 Document: 00514341970 Page: 1 Date Filed: 02/08/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals No. 16-60140 Fifth Circuit FILED February 8, 2018 MELSI GARCIA NUNEZ, Lyle W. Cayce Clerk Petitioner, v. JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL, Respondent. Petition for Review of an Order of the Board of Immigration Appeals Before WIENER, ELROD, and SOUTHWICK, Circuit Judges. PER CURIAM: Pro se petitioner Melsis Garcia-Nuñez, 1 a native and citizen of Honduras, petitions for review of the Board of Immigration Appeals’ order upholding the denial of her motion to reopen removal proceedings. The Board did not abuse its discretion in dismissing Garcia-Nuñez’s appeal and in affirming the immigration judge’s decision finding that Garcia-Nuñez received proper notice 1 Garcia-Nuñez notes that her first name was misspelled in the underlying proceedings. Her passport confirms this misspelling. We use the spelling of her name as it appears on her passport in the text of our opinion, and we hyphenate “Garcia-Nuñez” as both parties do in their briefs. However, as our practice is to use the case caption from the Board of Immigration Appeals’ order, we leave the case caption as “Melsi Garcia Nunez v. Jefferson B. Sessions, III, U.S. Attorney General.” Case: 16-60140 Document: 00514341970 Page: 2 Date Filed: 02/08/2018 No. 16-60140 of her removal hearing and failed to show a change in country conditions. Therefore, we DENY Garcia-Nuñez’s petition for review. I. Petitioner Melsis Garcia-Nuñez, a native and citizen of Honduras, illegally entered the United States in 2004. The Department of Homeland Security (DHS) personally served her with a notice to appear, which charged her with removability under 8 U.S.C. § 1182(a)(6)(A)(i) for being present in the United States without admission or parole. DHS advised her orally in Spanish that the notice to appear obligated her to keep the immigration court apprised of her current mailing address, and that she could be ordered removed if she failed to appear for a scheduled hearing. Garcia-Nuñez provided DHS with her mother’s phone number and mailing address. In February 2005, Garcia-Nuñez was sent a notice of hearing by regular mail to the address she had provided. The notice, however, was returned with a “not deliverable” stamp as well as the following handwritten statement on the front of the envelope: “She don’t leave [sic] here.” In 2005, the immigration judge ordered Garcia-Nuñez’s removal in absentia. The removal order was mailed to the address Garcia-Nuñez had provided, but the envelope was returned with a “moved—left no address” stamp and a handwritten notice stating, “She don’t leave [sic] here.” In addition, there was another handwritten note requesting, “Please return.” Five years later, Garcia-Nuñez married Miguel Zuniga, who became a naturalized citizen a few years after their marriage. A year after their marriage, Garcia-Nuñez gave birth to a son in Los Angeles, California. Nine years after the notice of hearing was sent, Garcia-Nuñez filed a motion to reopen removal proceedings based on a lack of notice and ...

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