Nestor Cortez-Vasquez v. Eric Holder, Jr. , 440 F. App'x 295 ( 2011 )

Case: 10-60910 Document: 00511590605 Page: 1 Date Filed: 09/01/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 1, 2011
No. 10-60910
Summary Calendar Lyle W. Cayce
Clerk
NESTOR ENRIQUE CORTEZ-VASQUEZ,
Petitioner,
versus
ERIC H. HOLDER, JR., U.S. Attorney General,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals
No. A098 935 340
Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
Nestor Cortez-Vasquez petitions for review of the denial by the Board of
Immigration Appeals (“BIA”) of his second motion to reopen removal proceed-
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-60910
ings. He argues that the in absentia removal order issued by the immigration
judge was invalid because he did not receive notice of the removal hearing and
was not adequately advised of the consequences of failing to provide immigration
officials with a current address. Cortez-Vasquez contends that he was entitled
to receive notice of the hearing and that the lack of notice violated due process
because he was seventeen years of age. He also asserts that proper considera-
tion was not given to either the evidence that he proffered in support of his asy-
lum request or whether his minor status qualified him for the William Wilber-
force Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”).
This court reviews the denial of a motion to reopen “under a highly defer-
ential abuse-of-discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 303 (5th
Cir. 2005). The BIA’s decision must be upheld as long as it is not “capricious,
racially invidious, utterly without foundation in the evidence, or otherwise so
irrational that it is arbitrary rather than the result of any perceptible rational
approach.” Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006) (internal quota-
tion marks and citation omitted).
Cortez-Vasquez has not established that the BIA abused its discretion in
denying his second motion to reopen as exceeding the numerical limitations on
such filings. An alien may file only one motion to reopen an order of removal
that was, as in this case, entered in absentia pursuant to INA § 240(b)(5)(a),
8 U.S.C. § 1229a(b)(5). 8 C.F.R. § 1003.23(b)(1), (b)(4)(ii); 8 U.S.C. § 1229a(c)(7);
see 8 C.F.R. § 1003.2(c)(3). There is no exemption to the numerical limitations
on the basis that the alien did not receive adequate notice. § 1003.23(b)(4)(ii);
§ 1229a(c)(7). Further, contrary to Cortez-Vasquez’s suggestions, the numerical
limitations are not subject to tolling on the basis of ineffective assistance of coun-
sel. See Ramos-Bonilla v. Mukasey, 543 F.3d 216, 219-20 (5th Cir. 2008).
Even if Cortez-Vasquez was not numerically barred from contesting his
removal proceedings on the basis of lack of notice, he has not shown that the
denial of the motion to reopen was an abuse of discretion. He does not dispute
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that he did not give immigration officials an address at which he could be
reached when he was served with his Notice to Appear (“NTA”) or at any other
time. He was old enough to be served with the NTA, and the record supports
that service did not violate due process. 8 C.F.R. § 103.5a(c)(ii); Lopez-Dubon v.
Holder, 609 F.3d 642, 645-47 (5th Cir. 2010). Thus, because Cortez-Vasquez was
not entitled to receive actual notice of his hearing, he would not be entitled to
recision of the removal order on the basis that he did not receive proper notice.
See § 1229a(b)(5)(B); Gomez-Palacios v. Holder, 560 F.3d 354, 360-61 (5th Cir.
2009).
Cortez-Vasquez also has not shown that he may file a second motion to
reopen because he applied for asylum and submitted with his motion to reopen
evidence regarding his asylum request. The time and numerical limitations on
motions to reopen do not apply if, inter alia, the motion is “based on changed
country conditions arising in the country of nationality or the country to which
removal has been ordered, if such evidence is material and was not available and
would not have been discovered or presented at the previous proceeding.”
§ 1229a(c)(7)(C)(ii); see § 1003.2(c)(2), (3). In addition to demonstrating changed
country conditions in an otherwise barred motion to reopen, the alien must show
prima facie eligibility for the relief sought. See Ogbemudia v. INS, 988 F.2d 595,
599-600 (5th Cir. 1993).
Although Cortez-Vasquez argues that the evidence that he offered in sup-
port of his asylum claim was overlooked, he does not identify the significance of
the evidence or explain why it warranted a reopening of the removal proceed-
ings. He does not indicate how the evidence supports that there was a material
change in country conditions and does not set forth any comparison between the
country conditions in El Salvador at the time of his second motion to reopen and
those that existed when his removal order was entered. See In re S-Y-G-, 24 I.
& N. Dec. 247, 253 (BIA 2007). Moreover, he does not explain how the evidence
supports that he is prima facie eligible for asylum; he does not allege or attempt
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to demonstrate that the evidence shows that he experienced past persecution or
possessed a well-founded fear of future persecution on account of a protected
ground. See Tesfamichael v. Gonzales, 469 F.3d 109, 113 (5th Cir. 2006) (setting
forth prima facie case for asylum). Thus, he has not established that his motion
to reopen was erroneously denied in light of his request for asylum.
Finally, Cortez-Vasquez has not shown his proceedings should have been
subject to the TVPRA, which does not apply to him because he does not satisfy
the definition of an “unaccompanied minor child.” He was accompanied by his
adult sister, who assumed custody for him upon his release, and his parents
lived in the United States and had legal immigration status. See 6 U.S.C.
§ 279(g)(2). Also, by the time Cortez-Vasquez submitted his application, he had
attained eighteen years of age and had reunited with his family in the United
States. See id. Thus, the TVPRA is inapplicable.
The petition for review is DENIED.
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