Santos Ramiro Hernandez-Galindo, a citizen of El Salvador, entered the United States in 1998 and was served with a notice to appear in 2002. Although he provided an updated address, he failed to appear at his scheduled removal hearing, resulting in an in absentia removal order. In 2023, he filed a motion to reopen and rescind the order, arguing he never received notice of the hearing due to ineffective assistance of counsel and that country conditions in El Salvador had changed to warrant asylum relief. The immigration judge denied the motion as untimely and failing to meet the burden of proof, and the Board of Immigration Appeals affirmed that decision.
The Eleventh Circuit reviewed the Board's decision for abuse of discretion. First, regarding the timeliness of the motion, the court applied the presumption of receipt when the government mailed a notice to the last known address. The court held that Hernandez-Galindo failed to rebut this presumption because he offered no corroborating evidence and had not shown diligence in seeking to resolve his status for over twenty years. Second, the court addressed the objection to the notice to appear, ruling that such objections are procedural and must be raised before the close of proceedings. Because Hernandez-Galindo did not object at his original hearing, he forfeited the claim. Third, the court analyzed the claim of changed country conditions. The court noted that while motions to reopen for asylum are exempt from time limits, the petitioner bears a heavy burden to show that the evidence is material and was not available previously. The court found that Hernandez-Galindo failed to provide evidence of conditions in 2002 to compare against current data. Furthermore, the evidence submitted indicated a decrease in homicide rates and gang activity in El Salvador, and personal threats alone do not constitute a change in country conditions.
The in absentia removal order from 2002 remains in full effect. The decision reinforces the strict procedural requirements for challenging removal orders, emphasizing that failure to appear without proven lack of notice results in forfeiture of the right to reopen. It also clarifies that asylum seekers must provide comparative historical data to prove changed country conditions, not just current reports.