Alvarado-Ruiz v. Garland ( 2023 )

Case: 22-60240 Document: 00516644687 Page: 1 Date Filed: 02/13/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
February 13, 2023
No. 22-60240 Lyle W. Cayce
Summary Calendar Clerk
____________
Damaris Amarilis Alvarado-Ruiz,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A208 748 356
______________________________
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam:*
Damaris Amarilis Alvarado-Ruiz, a native and citizen of Guatemala,
petitions for review of the decision of the Board of Immigration Appeals
(BIA) denying her motion to reopen and terminate. We review the BIA’s
decision “under a highly deferential abuse-of-discretion standard.” Garcia
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-60240 Document: 00516644687 Page: 2 Date Filed: 02/13/2023
No. 22-60240
v. Garland, 28 F.4th 644, 646 (5th Cir. 2022) (internal quotation marks and
citation omitted).
Citing Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), and Pereira v.
Sessions, 138 S. Ct. 2105 (2018), Alvarado-Ruiz argues that her notice to
appear was defective for failing to provide the date and time of her hearing
and that, consequently, the immigration judge did not have subject matter
jurisdiction over her removal proceedings, she was not provided the requisite
statutory notice of the hearing, and her procedural and substantive due
process rights were violated. Circuit precedent forecloses the argument. See
Castillo-Gutierrez v. Garland, 43 F.4th 477, 480 (5th Cir. 2022); Garcia, 28
F.4th at 646-48. Because the BIA did not abuse its discretion in denying this
claim on the merits, we need not consider Alvarado-Ruiz’s contention
regarding the timeliness of her motion. See INS v. Bagamasbad, 429 U.S. 24,
25 (1976).
We lack jurisdiction to consider Alvarado-Ruiz’s argument that the
BIA erred by not reopening her case sua sponte pursuant to 8 C.F.R.
§ 1003.2(a). See Gonzalez-Cantu v. Sessions, 866 F.3d 302, 306 (5th Cir.
2017); Hernandez-Castillo v. Sessions, 875 F.3d 199, 206-07 (5th Cir. 2017).
Accordingly, we dismiss the petition for review in part due to lack of
jurisdiction on the issue of sua sponte reopening and otherwise deny the
petition.
DISMISSED in part; DENIED in part.
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