Alvarez-De Sauceda v. Wilkinson ( 2021 )

Case: 19-60501 Document: 00515731141 Page: 1 Date Filed: 02/03/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 3, 2021
No. 19-60501 Lyle W. Cayce
Summary Calendar Clerk
San Juana Alvarez-De Sauceda,
Petitioner,
versus
Robert M. Wilkinson, Acting U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A091 374 218
Before Higginbotham, Jones, and Costa, Circuit Judges.
Per Curiam:*
San Juana Alvarez-De Sauceda, a native and citizen of Mexico,
petitions for review of an order of the Board of Immigration Appeals (BIA)
denying her second motion to reopen and declining to sua sponte reopen the
proceedings. For the following reasons, the petition for review is denied.
*
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opinion should not be published and is not precedent except under the limited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.
Case: 19-60501 Document: 00515731141 Page: 2 Date Filed: 02/03/2021
No. 19-60501
Motions to reopen are disfavored. Lara v. Trominski, 216 F.3d 487,
496 (5th Cir. 2000) (internal citation omitted). The denial of a motion to
reopen is reviewed for abuse of discretion. Zhao v. Gonzales, 404 F.3d 295,
301 (5th Cir. 2005). This court will affirm the BIA’s decision unless it is
“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 303-04 (internal citation omitted).
The BIA’s factual findings are reviewed for substantial evidence, and this
court will not disturb such findings unless the evidence compels a contrary
conclusion. Orellana-Monson v. Holder, 685 F.3d 511, 517-18 (5th Cir. 2012).
We need not decide whether the BIA properly held that Alvarez-De
Sauceda’s motion to reopen was untimely and that she was not entitled to
equitable tolling. Even assuming that her motion was timely, the BIA did not
abuse its discretion in denying the motion on the alternative ground that
Alvarez-De Sauceda failed to show that she was entitled to cancellation of
removal. See Yanez-Pena v. Barr, 952 F.3d 239, 241 (5th Cir. 2020), petition
for cert. filed (U.S. Apr. 6, 2020) (No. 19-1208). A perfected notice to appear
triggers the stop-time rule when an alien receives all required information,
whether in one document or more. See id. Moreover, Pierre-Paul v. Barr,
930 F.3d 684 (5th Cir. 2019), cert denied, 140 S. Ct. 2718 (2020), forecloses
Alvarez-De Sauceda’s arguments that her notice to appear did not vest the IJ
with jurisdiction. See Thompson v. Dallas City Att’y’s Office, 913 F.3d 464,
467 (5th Cir. 2019).
Insofar as Alvarez-De Sauceda claims that her notice to appear
violated her right to due process, “no liberty interest exists in a motion to
reopen, and therefore due process claims are not cognizable in the context of
reopening proceedings.” Mejia v. Whitaker, 913 F.3d 482, 490 (5th Cir.
2019).
PETITION FOR REVIEW DENIED.
2