Jorge Sanic-Lopez v. Jefferson Sessions, III

Case: 16-60838 Document: 00514273930 Page: 1 Date Filed: 12/14/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

United States Court of Appeals

No. 16-60838
Fifth Circuit

FILED
Summary Calendar December 14, 2017
Lyle W. Cayce
JORGE ARMANDO SANIC-LOPEZ, 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. A098 680 981

Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
PER CURIAM: *
Jorge Armando Sanic-Lopez, a native and citizen of Guatemala, petitions
this court to review the denial of his motion to reopen in absentia removal
proceedings. Sanic-Lopez argues that the Board of Immigration Appeals (BIA)
abused its discretion in affirming the denial of his motion to reopen because
the immigration judge (IJ) failed to consider the affidavits he offered to rebut
the presumption of proper notice. He further argues that the BIA erred in

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 16-60838

refusing to reopen the removal proceedings based on his failure to attach an
application for asylum and withholding of removal. Finally, he claims that the
BIA’s refusal to reopen the removal proceedings violated his right to due
process. We conclude that the BIA did not abuse its discretion in denying
Sanic-Lopez’s motion to reopen. See Gomez-Palacios v. Holder, 560 F.3d 354,
358 (5th Cir. 2009).
Despite Sanic-Lopez’s claim to the contrary, the IJ considered the
affidavits offered to rebut the presumption of valid service, but found that
Sanic-Lopez’s affidavit suffered from evidentiary flaws. Immigration courts
have an obligation to “weigh the credibility of an affidavit in determining
whether an alien has rebutted the presumption of notice.” Hernandez v. Lynch,
825 F.3d 266, 270 n.21 (5th Cir. 2016).
The IJ noted contradictions between Sanic-Lopez’s affidavit and his
housemate’s affidavit. For example, Sanic-Lopez stated that he was primarily
responsible for receiving mail at the address given to immigration officials, but
his housemate stated in her affidavit that she “g[o]t the mail daily.” The IJ
also noted that, unlike his housemate’s affidavit, Sanic-Lopez’s affidavit did
not have a Spanish original, and it appeared to have been prepared by his
attorney for purposes of the motion to reopen. As such, the IJ concluded that
the affidavit was not a “genuine statement” from Sanic-Lopez.
Sanic-Lopez also offered no evidence of changed country conditions in
Guatemala. Though his failure to demonstrate changed country conditions
was a sufficient basis for denying the motion to reopen, the IJ and the BIA also
pointed to Sanic-Lopez’s failure to submit an application for asylum and
withholding of removal. Sanic-Lopez argues that the BIA erred in requiring
that eligibility be shown through a prepared I-589 application. He contends
that his claimed fear of persecution in Guatemala on account of his

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No. 16-60838

homosexuality is sufficient to satisfy his burden. Sanic-Lopez is incorrect.
A motion to reopen “must be accompanied by the appropriate application for
relief and all supporting documentation.” 8 C.F.R. § 1003.2(c)(1).
Finally, Sanic-Lopez argues that the BIA’s refusal to reopen the removal
proceedings violated his right to due process because “he was never given a
meaningful opportunity to present his claim for relief from removal.” The BIA
did not violate his due process rights because “there is no liberty interest at
stake in a motion to reopen due to the discretionary nature of the relief sought”.
Gomez-Palacios, 560 F.3d at 361 n.2.
The petition for review is DENIED.

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