Palacios-Diaz v. Garland ( 2021 )

Case: 20-60861 Document: 00516083487 Page: 1 Date Filed: 11/05/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 5, 2021
No. 20-60861 Lyle W. Cayce
Summary Calendar Clerk
Raquel Noemi Palacios-Diaz,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A200 116 408
Before Davis, Jones, and Elrod, Circuit Judges.
Per Curiam:*
Raquel Noemi Palacios-Diaz, a native and citizen of El Salvador,
petitions for review of the order by the Board of Immigration Appeals (BIA)
upholding the denial by an immigration judge (IJ) of her motion to reopen her
immigration proceedings and rescind the in absentia removal order. Palacios-
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 20-60861
Diaz contends that she did not receive actual notice of the hearing because
she was confused about whether a hearing had actually been set. She
maintains that the BIA failed to consider her allegations that she was entitled
to equitable tolling of the time for filing a motion to reopen based on
exceptional circumstances, given her allegations that she received ineffective
assistance from a non-attorney representative. Palacios-Diaz alleges that the
denial of her motion to reopen and the lack of notice resulted in a denial of
due process. Finally, she arguably contends that the BIA and IJ erred in not
reopening the proceedings pursuant to their sua sponte authority. Although
Palacios-Diaz presented a claim for humanitarian relief based on family
circumstances before the BIA, she does not raise it here and it is therefore
abandoned. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
We review the denial of a motion to reopen under a highly deferential
abuse-of-discretion standard. Nunez v. Sessions, 882 F.3d 499, 505 (5th Cir.
2018). Such a decision will stand unless it is “capricious, irrational, utterly
without foundation in the evidence, based on legally erroneous
interpretations of statutes or regulations, or based on unexplained departures
from regulations or established policies.” Ramos-Portillo v. Barr, 919 F.3d
955, 958 (5th Cir. 2019) (internal quotation marks and citation omitted). We
review factual findings under the substantial evidence standard and legal
questions de novo, giving deference to the BIA’s interpretation of any
ambiguous immigration statutes. See Orellana-Monson v. Holder, 685 F.3d
511, 517-18 (5th Cir. 2012).
Palacios-Diaz has failed to show any abuse of discretion arising from
the BIA’s upholding the IJ’s finding that she received personal notice of the
removal hearing. See Nunez, 882 F.3d at 505. Although she maintains that
she was confused whether a hearing was actually set based on language in the
immigration forms and the oral statements of the immigration officer, she did
not present those allegations to the IJ and therefore failed to exhaust her
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No. 20-60861
administrative remedies. See Eduard v. Ashcroft, 379 F.3d 182, 195 n.14 (5th
Cir. 2004); Matter of Jimenez-Santillano, 21 I. & N. Dec. 567, 570 n.2
(BIA 1996). Accordingly, we lack jurisdiction to consider this argument. See
Omari v. Holder, 562 F.3d 314, 318-21 (5th Cir. 2009).
Although the BIA did not explicitly rule on Palacios-Diaz’s allegations
of equitable tolling and ineffective assistance, it adopted the decision of the
IJ, and we may consider the IJ’s ruling on those issues. See Wang v. Holder,
569 F.3d 531, 536 (5th Cir. 2009); Eduard, 379 F.3d at 186. Palacios-Diaz has
not shown that she is entitled to equitable tolling, as she has failed to show
that the 13-year delay in filing the motion to reopen was the result of
reasonable diligence. See Lugo-Resendez v. Lynch, 831 F.3d 337, 344 (5th Cir.
2016). We therefore need not consider whether Palacios-Diaz’s allegations
of ineffective assistance constituted an extraordinary circumstance that
prevented timely filing. See Mejia v. Barr, 953 F.3d 255, 259 (5th Cir. 2020).
Although Palacios-Diaz asserts that the denial of relief on her motion
to reopen constituted a denial of due process, “there is no liberty interest at
stake in a motion to reopen due to the discretionary nature of the relief
sought.” Hernandez-Castillo v. Sessions, 875 F.3d 199, 205 (5th Cir. 2017)
(internal quotation marks and citation omitted); see also Ramos-Portillo,
919 F.3d at 963 (rejecting claim that denial of a motion to reopen and to
rescind an in absentia removal order violated the due process clause). She
also contends that the lack of actual notice of her removal denied her due
process, but she was personally served with notice of that hearing. Finally,
to the extent that Palacios-Diaz challenges the agency’s refusal to sua sponte
reopen her removal proceedings, we lack jurisdiction to consider that
decision. Hernandez-Castillo, 875 F.3d at 206.
Based on the foregoing, the petition for review is DENIED in part
and DISMISSED in part.
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