     Case: 10-60117 Document: 00511322096 Page: 1 Date Filed: 12/15/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 15, 2010

                                     No. 10-60117                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



BAYRO ALFREDO BROM-RIVERA

                                                   Petitioner
v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL

                                                   Respondent




                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A098 890 588


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Petitioner Bayro Alfredo Brom-Rivera seeks a petition for review of the
decision of the Board of Immigration Appeals (“BIA”) dismissing his appeal from
the Immigration Judge’s (“IJ”) denial of his motion to reopen his removal
proceedings. We review the BIA’s decision under a “highly deferential” abuse-of-
discretion standard. Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). The
BIA’s factual findings are reviewed under a “substantial evidence” standard,


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-60117

such that this court will not overturn factual findings unless the evidence
compels a contrary conclusion. Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994). We
also review the IJ’s decision where, as here, the BIA relied on the decision of the
IJ. Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 348 (5th Cir. 2002).
      Brom-Rivera was apprehended near the Texas-Mexico border in April
2005. After being processed for removal by immigration officials, Brom-Rivera
was personally served with a “notice to appear” at a removal hearing before an
immigration court in Harlingen, Texas. Approximately one week before that
hearing, Brom-Rivera sent a letter to the immigration court asking that his case
be “sent to the Immigration Court in San Francisco, California.” He also
requested an extension in order for his recently hired immigration attorney to
prepare for the hearing. Finally, he asked the court to “direct all correspondence
to the address listed above.” That address was “1661 F. Crows Landing Rd.,
Modesto, CA 95358.” On the date of the originally scheduled hearing, the IJ
construed Brom-Rivera’s letter as a motion to change venue and denied the
motion for failure to include all required information. The IJ also, however,
stated that Brom-Rivera could resubmit his motion for consideration and
rescheduled the removal proceeding for September 21, 2005. The immigration
clerk of court mailed the order to Brom-Rivera at “1661 F. Crowns Landing Rd.,
Modesto, CA 95358.” Brom-Rivera did not appear at the September 21, 2005
hearing and was ordered removed in absentia. The record does not reflect
whether either the order rescheduling the hearing or the removal decision was
returned to the immigration court as undeliverable.
      Three years later, Brom-Rivera moved to reopen his removal proceedings.
Pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii), an in absentia removal order 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 paragraph (1) or (2) of
section 1229(a) of this title." 8 U.S.C. § 1229a(b)(5)(C)(ii). “[T]he word ‘receive’

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                                  No. 10-60117

clearly shows that the focus of the rescission inquiry, in contrast to the standard
for the initial entry of an in absentia order, is on the actual receipt of the
required notice and not whether the notice was properly mailed.”
Gomez-Palacios v. Holder, 560 F.3d 354, 360 (5th Cir. 2009). The IJ denied
Brom-Rivera’s motion, finding that he was personally served with the Notice to
Appear when he was apprehended. The IJ also stated that “[a]s the Court
mailed a notice of hearing to Respondent’s last known address, the Court cannot
reopen proceedings on account of the Respondent’s alleged lack of notice.” This
factual finding is clearly erroneous; the record compels the contrary conclusion
that the court did not mail the notice of hearing to Brom-Rivera’s correct
address. See Chun, 40 F.3d at 78.
      Accordingly, the petition for review is GRANTED, the decision of the BIA
is REVERSED, the removal order is VACATED, and the case is REMANDED
for the BIA for further proceedings consistent with this opinion. On remand, the
BIA, or the IJ, may consider in the first instance the effect of the typographical
error on Brom-Rivera’s alleged lack of notice.




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