Zoila Bustillo-Martinez v. Eric Holder, Jr. , 431 F. App'x 265 ( 2011 )

Case: 10-60885 Document: 00511520070 Page: 1 Date Filed: 06/24/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 24, 2011
No. 10-60885
Summary Calendar Lyle W. Cayce
Clerk
ZOILA HORTENCIA BUSTILLO-MARTINEZ,
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. A078 176 142
Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Zoila Hortencia Bustillo-Martinez, a native and citizen of Honduras,
petitions for review of the Board of Immigration Appeals’ (BIA) dismissing her
appeal from the immigration judge’s denial of her motion to reopen removal
proceedings. Bustillo’s motion to reopen was filed nine years after she failed to
appear for her hearing and was ordered removed in absentia.
Bustillo first contends the BIA erred by failing to exercise its sua sponte
authority to reopen those proceedings. Because that authority is discretionary,
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-60885
our court lacks jurisdiction to review this claim. 8 C.F.R. § 1003.2(a);
Lopez-Dubon v. Holder, 609 F.3d 642, 647 (5th Cir. 2010), cert. denied, ___ S. Ct.
___, 2011 WL 1529750 (2011); Enriquez-Alvarado v. Ashcroft, 371 F.3d 246,
249-50 (5th Cir. 2004).
Bustillo also maintains the BIA abused its discretion by declining to
reopen her removal proceedings, pursuant to 8 C.F.R. § 1003.2(c), to permit her
to pursue an asylum application based on changed conditions in Honduras. Our
court has jurisdiction to review this claim. Nolos v. Holder, 611 F.3d 279, 281
(5th Cir. 2010) (citing Kucana v. Holder, 130 S. Ct. 827, 838-40 (2010)). The
BIA’s denial is reviewed under a “highly deferential abuse-of-discretion
standard”. Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005) (citation
omitted). Under that standard, the decision is upheld “so 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”. Id. at 304 (citation and internal quotation marks
omitted).
Bustillo was required to file her motion to reopen no later than 180 days
after the date of the removal order. 8 C.F.R. § 1003.23(b)(4)(ii) (time limitation
for motion to reopen in absentia removal order). That time limitation does not
apply, however, where the motion is “based on changed circumstances arising
in the country of nationality . . . , if such evidence is material and was not
available and could not have been discovered or presented at the previous
hearing”. 8 C.F.R. § 1003.2(c)(3)(ii). Moreover, the motion to reopen “must be
accompanied by the appropriate application for relief and all supporting
documentation”. 8 C.F.R. § 1003.2(c)(1).
In its order regarding not reopening removal proceedings, the BIA noted,
inter alia, that Bustillo failed: to produce evidence of changed country
conditions; and to submit an asylum application with supporting documentation
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No. 10-60885
establishing her eligibility for relief. Accordingly, the BIA did not abuse its
discretion.
Finally, Bustillo contends the BIA violated her due-process rights by
basing its dismissal on her failure to submit an asylum application. She
maintains she had no time to submit the application because her impending
deportation required immediate action. The BIA, however, did not violate her
due-process rights because “there is no liberty interest at stake in a motion to
reopen due to the discretionary nature of the relief sought”. Gomez-Palacios v.
Holder, 560 F.3d 354, 361 n.2 (5th Cir. 2009).
DISMISSED in part; DENIED in part.
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