Alba Mendoza-Cortez v. Loretta Lynch ( 2016 )

Case: 15-60332 Document: 00513552890 Page: 1 Date Filed: 06/17/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-60332
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
June 17, 2016
ALBA MENDOZA-CORTEZ,
Lyle W. Cayce
Clerk
Petitioner
v.
LORETTA LYNCH, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A094 797 971
Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
Alba Mendoza-Cortez, a native and citizen of El Salvador, petitions this
court for review of the decision of the Board of Immigration Appeals (BIA)
dismissing her appeal of the denial of her motion to reopen her removal
proceedings. She argues that the Immigration Judge (IJ) and the BIA erred in
relying on the Form I-213 to establish her removability because it was
inaccurate and that the IJ erred in accepting admissions from her because she
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-60332 Document: 00513552890 Page: 2 Date Filed: 06/17/2016
No. 15-60332
was an unaccompanied 17-year-old minor. She also asserts the IJ and BIA
erred in finding her motion was untimely and in failing to consider whether
she exercised due diligence in filing the motion.
The Government moves for summary disposition, arguing that the BIA
did not abuse its discretion in denying Mendoza-Cortez’s motion because she
received proper notice of the removal proceedings and her motion to reopen
was untimely. She responded that the BIA abused its discretion when it found
that she received proper notice and that her motion was untimely and when it
failed to consider her argument that she exercised due diligence in filing the
motion.
The BIA did not abuse its discretion in finding that Mendoza-Cortez was
properly served with the notice to appear. See Barrios-Cantarero v. Holder,
772 F.3d 1019, 1021 (5th Cir. 2014). The record reflects that Mendoza-Cortez
was personally served with the notice to appear, which included the date, time,
and place of the removal hearing and was also advised in Spanish of the
consequences of failure to appear at the hearing. Her argument that service
was not proper because she was 17 years of age at the time lacks merit. See
Lopez-Dubon v. Holder, 609 F.3d 642, 646 (5th Cir. 2010).
Further, the BIA did not abuse its discretion in finding that her motion
to reopen was untimely. See Barrios-Cantarero, 772 F.3d at 1021. Under
8 U.S.C. § 1229a(b)(5)(C)(i), a motion to reopen based on extraordinary
circumstances must be filed within 180 days of the order of removal. Because
Mendoza-Cortez’s motion was filed over six years after the date of the removal
order, it was not timely filed. See § 1229a(b)(5)(C)(i).
Even if the time period for filing a motion to reopen may be equitably
tolled, Mendoza-Cortez has not demonstrated that she would be entitled to
equitable tolling because she has not shown that she acted with due diligence.
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No. 15-60332
Given that Mendoza-Cortez was personally served with the notice to appear
and was advised in Spanish of the consequences of failure to appear at the
hearing, her argument that she was unaware of the removal proceedings or
the removal order lacks merit. Mendoza-Cortez has not shown that she
exercised due diligence in pursuing her rights or that an extraordinary
circumstance stood in her way and prevented her from filing a motion to
reopen. See, e.g., Holland v. Florida, 560 U.S. 631, 649 (2010); Amali v.
Gonzales, 235 F. App’x 212, 213 (5th Cir. 2007).
The motion for summary disposition is GRANTED, and the petition for
review is DENIED.
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