Marvin Rodriguez-Bonilla v. Loretta Lynch , 616 F. App'x 155 ( 2015 )

Case: 14-60493 Document: 00513198721 Page: 1 Date Filed: 09/18/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 18, 2015
No. 14-60493
Summary Calendar Lyle W. Cayce
Clerk
MARVIN JOSE RODRIGUEZ-BONILLA,
Petitioner
v.
LORETTA LYNCH, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A099 476 616
Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
Marvin Jose Rodriguez-Bonilla, a native and citizen of Nicaragua, was
ordered removed in absentia by an Immigration Judge (IJ). He now petitions
for review of an order of the Board of Immigration Appeals (BIA) dismissing
his appeal from the IJ’s order denying Rodriguez-Bonilla’s motion to reopen
the proceedings and rescind his in absentia deportation order.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-60493
Rodriguez-Bonilla first contends that the BIA abused its discretion by
declining to reopen the case and permit him to pursue his claims for asylum,
withholding of removal, and protection under the Convention Against Torture
(CAT), as well as by declining to reopen the case in order to rescind the in
absentia deportation order based on exceptional circumstances. We review the
denial of a motion to reopen for abuse of discretion, a highly deferential
standard. Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009). We
lack jurisdiction to review the BIA’s factual determinations that Rodriguez-
Bonilla failed to timely file his asylum application and had failed to show
changed circumstances. See Arif v. Mukasey, 509 F.3d 677, 680 (5th Cir. 2007);
Zhu v. Gonzales, 493 F.3d 588, 596 & n.31 (5th Cir. 2007). We further conclude
that the BIA did not abuse its discretion when denying Rodriguez-Bonilla’s
motion to reopen so he could pursue his claims for withholding of removal and
protection under the CAT, because Rodriguez-Bonilla did not demonstrate his
prima facie eligibility to relief under these claims. See Gomez-Palacios, 560
F.3d at 358.
We also conclude that the BIA’s decision not to reopen the case in order
to rescind the in absentia deportation order based on Rodriguez-Bonilla’s
failure to appear due to a lack of transportation and his pending motion to
change venue was not an abuse of discretion, because neither of these
constituted exceptional circumstances. Id.; see also Matter of Patel, 19 I. & N.
Dec. 260, 262 (BIA 1985), aff’d, 803 F.2d 804 (5th Cir. 1986). Nor does
ineffective assistance of counsel constitute an exceptional circumstance, given
that Rodriguez-Bonilla was correctly told by his counsel that he was required
to appear at the hearing. Even if Rodriguez-Bonilla had received erroneous
advice by counsel or counsel was ineffective for some other reason, he failed to
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Case: 14-60493 Document: 00513198721 Page: 3 Date Filed: 09/18/2015
No. 14-60493
comply with the requirements for presenting such a claim to the BIA. See
Matter of Lozada, 19 I & N Dec. 637, 639 (BIA 1988).
Rodriguez-Bonilla also argues that the IJ’s failure to reopen the case
violated his due process right to a full and fair hearing under the Fifth
Amendment and that the BIA compounded the error by not addressing his due
process argument. However, whether to grant a motion to reopen removal
proceedings is purely discretionary, and “the denial of discretionary relief does
not rise to the level of a constitutional violation even if the moving party had
been eligible for it.” Altamirano-Lopez v. Gonzales, 435 F.3d 547, 550 (5th Cir.
2006) (internal quotation marks, citation, and brackets omitted). Rodriguez-
Bonilla cites nothing to support his argument that the case should be
remanded so that the IJ could ask the Department of Homeland Security to
exercise its prosecutorial discretion. Finally, Rodriguez-Bonilla has
abandoned his claim that the IJ erred by failing to grant his motion to change
venue and that the BIA compounded the error by failing to address it. See
Chambers v. Mukasey, 520 F.3d 445, 448 n.1 (5th Cir. 2008); Soadjede v.
Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
PETITION DISMISSED IN PART FOR LACK OF JURISDICTION;
DENIED IN PART.
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