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Guevara-De Rivera v. Garland ( 2023 )


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  • Case: 22-60025     Document: 00516617709         Page: 1     Date Filed: 01/20/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-60025
FILED
January 20, 2023
Summary Calendar
Lyle W. Cayce
Clerk
Delmi Guevara-De Rivera; Kevin Isaac Guevara-Rivera;
Yesli Adeli Guevara-Rivera; Yuri Roxana Guevara-
Rivera,
Petitioners,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A209 421 259
Agency No. A209 421 260
Agency No. A209 421 261
Agency No. A209 421 262
Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam:*
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 22-60025      Document: 00516617709           Page: 2     Date Filed: 01/20/2023
No. 22-60025
Delmi Guevara-De Rivera, and her three minor children Kevin Isaac
Guevara-Rivera, Yesli Adeli Guevara-Rivera, and Yuri Roxana Guevara-
Rivera, all natives and citizens of El Salvador, petition for review of the denial
by the Board of Immigration Appeals (BIA) of their motion to reopen the
removal proceedings for which Guevara-De Rivera was present. We review
the BIA’s legal conclusions de novo and the BIA’s denial of a motion to
reopen for abuse of discretion. Ramos-Portillo v. Barr,
    919 F.3d 955
    , 958 (5th
Cir. 2019).
We have expressly rejected the petitioners’ arguments on review that
a notice to appear without the date and time of the removal hearing deprives
the immigration court of jurisdiction or is otherwise defective outside of the
in-absentia or stop-time rule context. See Garcia v. Garland,
    28 F.4th 644
    ,
646-48 (5th Cir. 2022). Thus, we need not address their arguments regarding
equitable tolling. See INS v. Bagamasbad,
    429 U.S. 24
    , 25 (1976). We lack
jurisdiction to review the petitioners’ challenge that the BIA erred in failing
to exercise its sua sponte authority to reopen their case. See Mejia v.
Whitaker,
    913 F.3d 482
    , 490 (5th Cir. 2019).
The petition for review is therefore DENIED in part and
DISMISSED in part.
2