Rodriguez-Sanchez v. Gonzales , 202 F. App'x 768 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 18, 2006
Charles R. Fulbruge III
Clerk
No. 05-60943
Summary Calendar
IVONNE LISETTE RODRIGUEZ-SANCHEZ,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A29 953 950
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Ivonne Lisette Rodriguez-Sanchez has filed a petition for
review of an order of the Board of Immigration Appeals (BIA)
denying her motion to reopen 1989 proceedings that resulted in her
being ordered deported in absentia. In reviewing the BIA’s denial
of a motion to reopen, we apply a “highly deferential abuse of
discretion standard.” Lara v. Trominski, 216 F.3d 487, 496 (5th
Cir. 2000). We will affirm the BIA’s decision 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
*
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this opinion should not be published and is not precedent except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. 05-60943
-2-
perceptible rational approach. See Singh v. Gonzales, 436 F.3d
484, 487 (5th Cir. 2006) (quotations and citation omitted).
“Under the former § 242B(c)(1) of the INA, 8 U.S.C.
§ 1252b(c)(1)(repealed 1996), when an alien fails to appear at a
deportation hearing, the government must establish by clear,
unequivocal, and convincing evidence that proper notice has been
given.” Adeyemo v. Ashcroft, 383 F.3d 558, 561 (7th Cir. 2004)
(internal quotation omitted). Although an order to show cause was
required to be sent by certified mail signed by the alien, or a
responsible person at the alien’s last known address, no such
requirement existed for a notice of hearing following a properly
effected order to show cause. Id. at 560.
To the extent Sanchez argues that the record fails to show
that the notice of hearing was addressed to her at her last known
address, Sanchez’s failure to raise the argument before the BIA in
her motion to reopen precludes our consideration of the issue. See
Wang v. Ashcroft, 260 F.3d 448, 453 (5th Cir. 2001). To the extent
Sanchez argues that the notice of hearing must have been sent by
certified mail and claimed by herself or another at the last known
address, her argument is unavailing. See Adeyemo, 383 F.3d at 560.
The BIA did not abuse its discretion by denying Sanchez’s
motion to reopen. See Lara, 216 F.3d at 496. Accordingly,
Sanchez’s petition for review is DENIED.