Gutierrez-Garcia v. Mukasey , 255 F. App'x 873 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 26, 2007
No. 07-60200
Summary Calendar Charles R. Fulbruge III
Clerk
ANA INEZ GUTIERREZ-GARCIA
Petitioner
v.
MICHAEL B MUKASEY, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A29-966-728
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Ana Inez Gutierrez-Garcia is a native and citizen of Guatemala. She
petitions, pro se, for review of the Board of Immigration Appeals’ (BIA)
affirmance of the immigration judge’s (IJ) denial of her motion to reopen removal
proceedings, and denial of her motion for a remand. While questions of law are
reviewed de novo, we “accord deference to the BIA’s interpretation of
immigration statutes unless the record reveals compelling evidence that the
*
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should not be published and is not precedent except under the limited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.
No. 07-60200
BIA’s interpretation is incorrect”. Mikhael v. INS, 115 F.3d 299, 302 (5th Cir.
1997) (citing Rojas v. INS, 937 F.2d 186, 189 (5th Cir. 1991)). The BIA’s
affirmance of an IJ’s denial of a motion to reopen removal proceedings is
reviewed for an abuse of discretion. See, e.g., Altamirano-Lopez v. Gonzales, 435
F.3d 547, 549 (5th Cir. 2006). Motions to reopen deportation proceedings are
disfavored, and the moving party bears a heavy burden. Id.Gutierrez was required to file a motion to reopen within 180 days of the
in absentia deportation order. 8 U.S.C. § 1229a(b)(5)(C)(i). That order was
dated 24 April 1990. Gutierrez did not file her motion to reopen the proceedings
until 9 July 2004, 14 years later. Additionally, as this is her second motion to
reopen, it was improvidently filed, given that she was entitled to file only one
motion to reopen. Id. § 1229a(c)(7)(A), (c)(7)(C)(iii). Thus, the BIA’s affirmance
of the IJ’s denial of Gutierrez’ motion to reopen, based on her delay in seeking
such relief, was not an abuse of discretion. See Altamirano-Lopez, 435 F.3d at
549.
BIA regulations do not specifically authorize motions to remand.
Nevertheless, as noted supra, we review the BIA’s denial of a motion to remand
for an abuse of discretion. See, e.g., Ogbemudia v. INS, 988 F.2d 595, 600 (5th
Cir. 1993). The BIA must deny a motion to remand if it finds the movant has not
introduced previously unavailable, material evidence, or if the movant has not
established a prima facie case for the underlying substantive relief sought. Id.
at 599-600. Because, as discussed above, Gutierrez has not established a prima
facie case for reopening the removal proceedings, the BIA did not abuse its
discretion when it denied her motion for a remand. See id.DENIED.
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