Azua-Barron v. Mukasey , 265 F. App'x 183 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 6, 2008
No. 07-60117
Summary Calendar Charles R. Fulbruge III
Clerk
ARTURO AZUA-BARRON, also known as Arturo Azua
Petitioner
v.
MICHAEL B MUKASEY, US ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A96 042 413
Before KING, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
Arturo Azua-Barron, a native and citizen of Mexico, has filed a petition for
review of the Board of Immigration Appeals’ (BIA) denial of his motion to
remand the removal proceedings to the immigration judge (IJ) so that he could
reapply for nonpermanent resident cancellation of removal. Azua-Barron
contends that he withdrew his application for cancellation of removal under the
erroneous belief that he was not eligible for relief. He now believes that, in view
*
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should not be published and is not precedent except under the limited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.
No. 07-60117
of the BIA’s decision in In re Avilez-Nava, 23 I & N Dec. 799 (BIA 2005), he is
eligible because his prior departure in 2001 did not interrupt his continuous
presence in the United States. He argues that he meets all the requirements
and that his removal from the United States would result in exceptional and
extremely unusual hardship for his wife and children who are United States
citizens.
This court reviews the BIA’s conclusions of law de novo, deferring to the
BIA’s interpretation of immigration regulations if the interpretation is
reasonable. Long v. Gonzales, 420 F.3d 516, 519 (5th Cir. 2005). The court
reviews the BIA’s factual findings to determine whether they are supported by
substantial evidence. Id. A motion filed before the BIA while the IJ’s removal
decision is before the BIA on direct appeal is considered a motion to remand.
Wang v. Ashcroft, 260 F.3d 448, 451-52 (5th Cir. 2001). We review the BIA’s
denial of the motion for an abuse of discretion. Ramchandani v. Gonzales, 434
F.3d 337, 340 n.6 (5th Cir. 2005).
Azua-Barron does not identify any error in the BIA’s determination that
he was advised of and understood the consequences of withdrawing his
application and chose to withdraw it at the prior removal hearing, and there is
substantial evidence to support the BIA’s determination. Nor was Azua-Barron’s
motion based on circumstances that arose after the prior hearing, as the decision
in In re Avilez-Nava was available prior to the removal hearing. Azua-Barron
has not shown that the BIA’s decision was “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.” See Singh v.
Gonzales, 436 F.3d 484, 487 (5th Cir. 2006). Accordingly, Azua-Barron’s petition
for review is DENIED.
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