Jorge Perdomo-Alcantara v. Loretta Lynch , 670 F. App'x 858 ( 2016 )

Case: 15-60616 Document: 00513767402 Page: 1 Date Filed: 11/21/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-60616 FILED
Summary Calendar November 21, 2016
Lyle W. Cayce
Clerk
JORGE ALBERTO PERDOMO-ALCANTARA,
Petitioner
v.
LORETTA LYNCH, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A206 716 096
Before BARKSDALE, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
Jorge Alberto Perdomo-Alcantara, a native and citizen of Honduras, was
ordered removed in absentia in 2014 after he failed to appear at his 2014
removal hearing in Dallas, Texas, for which he concedes he had notice.
Approximately a month after the removal order, he moved to reopen the
proceedings and rescind the order, asserting his failure to appear was due to
exceptional circumstances. The immigration judge (IJ) denied the motion in
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 15-60616
2015, and the Board of Immigration Appeals (BIA) dismissed Perdomo’s
appeal.
Perdomo petitions for review of the BIA’s decision, contending: (1) the
IJ erred in finding he had not demonstrated exceptional circumstances
excusing his failure to appear at the removal hearing; and (2) the IJ’s denial of
the motion to reopen violated his due-process right to a full and fair removal
hearing. Because Perdomo did not exhaust the second claim by presenting it
to the BIA, we lack jurisdiction to consider it. See 8 U.S.C. § 1252(d)(1); Roy v.
Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004); Wang v. Ashcroft, 260 F.3d 448,
452–43 (5th Cir. 2001).
With regard to Perdomo’s exhausted claim concerning exceptional
circumstances, we review the decisions of both the BIA and the IJ, applying “a
highly deferential abuse-of-discretion standard”. Barrios-Cantarero v. Holder,
772 F.3d 1019, 1021 (5th Cir. 2014); Wang v. Holder, 569 F.3d 531, 536 (5th
Cir. 2009). An IJ abuses his discretion when he “issues a decision that is
capricious, irrational, utterly without foundation in the evidence, based on
erroneous interpretations of statutes or regulations, or based on unexplained
departures from regulations or established policies”. Barrios-Cantarero, 772
F.3d at 1021. Factual findings are reviewed for substantial evidence. Wang,
569 F.3d at 536–37.
A motion to reopen an in absentia removal hearing will be granted if the
alien “demonstrates that the failure to appear was because of exceptional
circumstances”. 8 U.S.C. § 1229a(b)(5)(C)(i). Exceptional circumstances are
those “beyond the control of the alien”, including “battery or extreme cruelty to
the alien or any child or parent of the alien, serious illness of the alien, or
serious illness or death of the spouse, child, or parent of the alien, but not
including less compelling circumstances”. 8 U.S.C. § 1229a(e)(1). “The plain
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language of the statute indicates that this is a difficult burden to meet.”
Magdaleno de Morales v. I.N.S., 116 F.3d 145, 148 (5th Cir. 1997).
Perdomo contends he demonstrated exceptional circumstances based on:
the short time between his release from Department of Homeland Security
custody and the hearing date (during which he had to obtain counsel and
prepare an asylum application); his moving from Texas to Virginia
approximately ten days prior to the hearing date; and his reliance on counsel’s
deficient advice that venue would be changed from Texas to Virginia after
submission of a change-of-address form.
As stated for the earlier referenced unexhausted claim, we lack
jurisdiction to consider Perdomo’s ineffective-assistance-of-counsel assertion
because he did not exhaust it by presenting it to the BIA. See 8 U.S.C.
§ 1252(d)(1); Roy, 389 F.3d at 137; Wang, 260 F.3d at 452–53. His remaining
assertions amount to a contention that an alien’s lack of preparation, inability
to timely retain counsel, or financial difficulties are sufficient to excuse failure
to appear at a scheduled hearing.
None of the asserted circumstances, however, resemble those deemed
sufficiently compelling in 8 U.S.C. § 1229a(e)(1). Even if such circumstances
did justify Perdomo’s failure to appear, he nonetheless failed to make adequate
efforts to avoid entry of the in absentia removal order by informing the IJ in
advance of his extenuating circumstances or moving to continue the hearing.
See Magdaleno de Morales, 116 F.3d at 149 (explaining that courts expect
adequate efforts to avoid entrance of in abstentia orders). Along that line,
although Perdomo asserts he filed a change-of-address form when he moved to
Virginia, the administrative records contain no such notice.
Based on the foregoing, Perdomo fails to show that the IJ’s refusal to
reopen his in absentia removal proceedings was “capricious, without
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foundation in the evidence, or otherwise so irrational that it is arbitrary rather
than the result of any perceptible rational approach”. Gomez-Palacios v.
Holder, 560 F.3d 354, 358 (5th Cir. 2009); see Wang, 569 F.3d at 536–37.
Consequently, the BIA did not abuse its discretion in dismissing his appeal.
See Barrios-Cantarero, 772 F.3d at 1021.
DISMISSED IN PART and DENIED IN PART.
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