Jose Mejia-Urbina v. Jefferson Sessions, III

Case: 16-60819 Document: 00514353759 Page: 1 Date Filed: 02/20/2018

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-60819 FILED
Summary Calendar February 20, 2018
Lyle W. Cayce
Clerk
JOSE ALFREDO MEJIA-URBINA,

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. A096 175 967

Before BARKSDALE, PRADO, and OWEN, Circuit Judges.
PER CURIAM: *
Jose Alfredo Mejia-Urbina, a native and citizen of El Salvador, seeks
review of the Board of Immigration Appeals’ (BIA) dismissal of his appeal from
an immigration judge’s denial of his motion to reopen his in absentia removal
proceeding. He contends the in absentia removal order in 2004 was improper
because he lacked notice of the hearing.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 16-60819 Document: 00514353759 Page: 2 Date Filed: 02/20/2018

No. 16-60819

Denial of a motion to reopen is reviewed “under a highly deferential
abuse-of-discretion standard”. Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir.
2005). The BIA’s decision will be upheld “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”. Gomez-Palacios v.
Holder, 560 F.3d 354, 358 (5th Cir. 2009) (citing Singh v. Gonzales, 436 F.3d
484, 487 (5th Cir. 2006)). Factual findings are reviewed for substantial
evidence, meaning they will not be overturned “unless the evidence compels a
contrary conclusion”. Id. (citing Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994)).
Mejia requested reopening his proceedings based on lack of notice. 8
C.F.R. § 1003.23(b)(4)(iii)(D). He asserts the notice of hearing was sent to an
incorrect address, resulting in his failure to appear not being his fault. But, as
the BIA determined, Mejia was personally served with the notice to appear
(NTA). The NTA, which he signed, contains the address to which the hearing
notice was mailed; advised Mejia of his obligation to apprise the immigration
court of his full mailing address; and advised him of the consequences of his
failure to appear at a hearing. He was also advised of this obligation orally in
Spanish.
Nonetheless, the record is devoid of evidence that indicates he attempted
to notify the immigration court the address contained in the NTA was
incorrect. Moreover, as support for his claim of governmental error, he relies
only on his counsel’s brief to the BIA, in which counsel stated an immigration
officer wrote Mejia’s address incorrectly. It goes without saying that counsel’s
unsupported statements are not sufficient. See INS v. Phinpathya, 464 U.S.
183, 188–89 n.6 (1984).
In sum, Mejia did not comply with his obligation to keep his address
current, and his failure to do so precludes his obtaining relief. E.g., Gomez-

2
 Case: 16-60819 Document: 00514353759 Page: 3 Date Filed: 02/20/2018

No. 16-60819

Palacios, 560 F.3d at 360–61 (affirming BIA’s denial of appeal from in absentia
removal when alien failed to comply with obligation to provide current address
information). The BIA’s ruling, therefore, was not an abuse of discretion. E.g.,
id. at 358.
DENIED.

3