Agripina Giron-Gonzalez v. Eric Holder, Jr. , 414 F. App'x 733 ( 2011 )

Case: 10-60615 Document: 00511400617 Page: 1 Date Filed: 03/03/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 3, 2011
No. 10-60615
Summary Calendar Lyle W. Cayce
Clerk
AGRIPINA GIRON-GONZALEZ,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A097 834 203
Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Agripina Giron-Gonzalez, a native and citizen of Guatemala, petitions for
review of an order of the Board of Immigration Appeals (BIA) affirming the
Immigration Judge’s (IJ) denial of her motion to reopen and rescind her in
absentia removal order. Giron contends the BIA erred by denying her motion to
reopen because the notice of her hearing before the IJ was returned as
undeliverable and, therefore, she did not receive notice of it.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 10-60615 Document: 00511400617 Page: 2 Date Filed: 03/03/2011
No. 10-60615
The denial of a motion to reopen is reviewed under a “highly deferential
abuse-of-discretion standard”. Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th
Cir. 2009). That denial must be affirmed 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”. Id. Because the BIA
affirmed, without opinion, the IJ’s decision, we review the IJ’s factual findings
and legal conclusions. Eduard v. Ashcroft, 379 F.3d 182, 186 (5th Cir. 2004).
Those fact-findings are upheld unless “not supported by substantial evidence in
the record”. Id.The IJ’s findings, that Giron failed to provide authorities with a current
mailing address and was admonished concerning the consequences of failing to
appear at hearings, are supported by substantial evidence in the record. See,
e.g., Gomez-Palacios, 560 F.3d at 359-61. Her failure to provide the address
supports the BIA’s decision. 8 U.S.C. § 1229a(b)(5)(C)(ii) (“an order may be
rescinded only . . . [where] alien demonstrates . . . failure to appear was through
no fault of the alien”); Gomez-Palacios, 560 F.3d at 360-61 (holding alien’s not
receiving actual notice due to his failure to keep court apprised of his mailing
address does not mean he did not receive notice). Giron’s assertions are
insufficient to show the BIA abused its discretion in denying her motion to
reopen. See, e.g., Gomez-Palacios, 560 F.3d at 360-61.
Insofar as Giron maintains she was unable to file a change of address form
with the immigration court because her notice to appear was not yet filed with
that court, we decline to consider this claim because she failed to exhaust her
administrative remedies. Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004).
DENIED.
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