Alves-Ribeiro v. Garland ( 2022 )

Case: 21-60786 Document: 00516420292 Page: 1 Date Filed: 08/04/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 4, 2022
No. 21-60786 Lyle W. Cayce
Summary Calendar Clerk
Silvana Ferreira Alves-Ribeiro,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A098 886 535
Before Southwick, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
Silvana Ferreira Alves-Ribeiro, a native and citizen of Brazil, petitions
for review of the Board of Immigration Appeals’s (BIA) decision denying her
motion to reconsider its dismissal of her appeal. That appeal concerned an
*
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opinion should not be published and is not precedent except under the limited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: 21-60786 Document: 00516420292 Page: 2 Date Filed: 08/04/2022
No. 21-60786
Immigration Judge’s (IJ) denial of her motion to reopen and to rescind a
removal entered in absentia in 2006.
We review the BIA’s denial of a motion to reconsider under the
highly deferential abuse-of-discretion standard. Hernandez-Castillo v.
Sessions, 875 F.3d 199, 203 (5th Cir. 2017). Under this standard, we “must
affirm the BIA’s decision 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).
It is undisputed that Alves-Ribeiro filed her motion to reopen well
beyond the 90-day time frame established by 8 U.S.C. § 1229a(c)(7)(C)(i).
Nevertheless, Alves-Ribeiro contends that she is entitled to reconsideration
based on changed country conditions in Brazil. Because Alves-Ribeiro has
failed to show a “material change,” the BIA did not abuse its discretion in
denying her motion to reconsider. See Nunez v. Sessions, 882 F.3d 499, 509–
10 (5th Cir. 2018).
We have no basis to address Alves-Ribeiro’s arguments that she has
demonstrated the elements of an asylum claim or that the IJ acted improperly
as these arguments can only be considered in the context of the motion, and
the motion has no basis without changed country conditions. See 8 C.F.R.
§ 1003.23(b)(4)(i). To the extent she argues that the BIA committed a due
process violation by denying her motion, we have foreclosed such an
argument. See Mejia v. Barr, 952 F.3d 255, 260–61 (5th Cir. 2020).
We dismiss the argument that Alves-Ribeiro is eligible for cancellation
of removal because of exceptional hardship, as this claim was not argued
before the BIA and so is unexhausted. See Lopez-Dubon v. Holder, 609 F.3d
642, 644 (5th Cir. 2010).
PETITION DENIED IN PART, DISMISSED IN PART.
2