Patricia Martinez-Manzanarez v. William Barr, U. S ( 2020 )

Case: 19-60460 Document: 00515532504 Page: 1 Date Filed: 08/19/2020
REVISED August 19, 2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-60460 FILED
Summary Calendar August 14, 2020
Lyle W. Cayce
Clerk
PATRICIA GRICEL MARTINEZ-MANZANAREZ,
Petitioner
v.
WILLIAM P. BARR, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A089 846 756
Before DAVIS, STEWART, and DENNIS, Circuit Judges.
PER CURIAM: *
Patricia Gricel Martinez-Manzanarez, a native and citizen of Honduras,
petitions for review of an order of the Board of Immigration Appeals (BIA)
denying her motion seeking reconsideration of the BIA’s dismissal of her
appeal from an immigration judge’s (IJ) order denying her motion to reopen
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-60460
her immigration proceedings and rescind an in absentia removal order that
issued in 2011.
As a preliminary matter, we have jurisdiction to review only the motion
for reconsideration because Martinez-Manzanarez did not separately petition
for review of the order dismissing her appeal. See Guevara v. Gonzales, 450
F.3d 173, 176 (5th Cir. 2006. We also lack jurisdiction to consider Martinez-
Manzanarez’s claim that she did not receive the requisite statutory notice
under 8 U.S.C. § 1229a(1) and related claims because she failed to raise those
claims in her proceedings before the BIA. See Roy v. Ashcroft, 389 F.3d 132,
137 (5th Cir. 2004); Wang v. Ashcroft, 260 F.3d 448, 452 (5th Cir. 2001). As
she recognizes, her claim that the notice to appear served on her failed to confer
jurisdiction on the immigration court based on the decision in Pereira v.
Sessions, 138 S. Ct. 2105 (2018), is foreclosed by our decision in Pierre-Paul v.
Barr, 930 F.3d 684 (5th Cir. 2019), cert. denied, --- S. Ct. ---, 2020 WL 1978950
(Apr. 27, 2020) (Mem.).
Thus, the only issue before this court is the BIA’s refusal to reconsider
its determination that Martinez-Manzanarez failed to exercise sufficient due
diligence to warrant equitable tolling of the deadline for filing her motion to
reopen and rescind the in absentia order, an issue we review “under a highly
deferential abuse of discretion standard.” Le v. Lynch, 819 F.3d 98, 104 (5th
Cir. 2016). For the BIA to grant a motion to reconsider, the alien must “identify
a change in the law, a misapplication of the law, or an aspect of the case that
the BIA overlooked.” Chambers v. Mukasey, 520 F.3d 445, 448 (5th Cir. 2008)
(internal quotation marks and citation omitted). To obtain equitable tolling,
the movant must establish (1) that she pursued her rights diligently and
(2) that some extraordinary circumstance stood in her way and prevented
timely filing. Lugo-Resendez v. Lynch, 831 F.3d 337, 344 (5th Cir. 2016).
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Martinez-Manzanarez argues that the BIA’s determination that she
failed to exercise sufficient due diligence to warrant equitable tolling was based
on an application of our decision in Lugo-Resendez that was too harsh and
failed to account for her unique circumstances. She further asserts that she
demonstrated sufficient diligence under decisions of other circuits. As evidence
of her diligence, she cites her status as a 17 year-old minor when she entered
the United States, abuse by her sponsor that precluded her from receiving
notice of her master hearing, a relationship with an abusive boyfriend that
followed, a 2011 request for her immigration file under the Freedom of
Information Act (FOIA), the negative response to that request, a two-year
period from 2013-15 when she was defrauded by an individual purporting to
be an attorney, her retention of counsel in 2016, and her prompt filing of a
motion to reopen upon learning of the in absentia order.
However, the BIA declined to order a remand for the 2011 FOIA request
to be presented to the IJ based, in part, upon its determination that it lacked
jurisdiction to do so, and Martinez-Manzanarez did not challenge that
determination in her motion for reconsideration. Furthermore, the affidavit
describing Martinez-Manzanarez’s efforts from 2013 through 2015 was
attached only to her motion for reconsideration and thus was not considered
by the agency when it denied her motion to reopen and dismissed her appeal.
See Zhao v. Gonzales, 404 F.3d 295, 301 (5th Cir. 2005). Thus, the evidence
pertaining to Martinez-Manzanarez’s efforts to ascertain the status of her
immigration proceedings from 2011 to 2016 was not before the BIA when it
denied her motion to reconsider its dismissal of her appeal. Accordingly, we do
not consider it.
The BIA’s denial of Martinez-Manzanarez’s motion for reconsideration
was not abuse of discretion. See Mendias-Mendoza v. Sessions, 877 F.3d 223,
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227 (5th Cir. 2017). The BIA could not grant reconsideration on claims that
were presented on appeal that were not predicated on factual or legal error in
its original decision. See Chambers, 520 F.3d at 448. Furthermore, neither
the BIA nor this court is bound by the decisions of other circuits in immigration
cases that originate in this circuit. See Matter of U. Singh, 25 I. & N. Dec. 670,
672 (BIA 2012); see also Arce-Vences v. Mukasey, 512 F.3d 167, 172 (5th Cir.
2007). Finally, we are not persuaded that the BIA’s rejection of Martinez-
Manzanarez’s claim that it misapplied the due diligence standard set forth in
Lugo-Resendez was “capricious, irrational, [or] utterly without foundation in
the evidence,” in light of the record before it, which included Martinez-
Manzanarez’s failure to update her address with the immigration court or to
identify any efforts to ascertain the status her immigration proceedings from
2011 through 2016. Mendias-Mendoza, 877 F.3d at 227.
Because Martinez-Manzanarez failed to identify any factual, legal or
procedural error that would support reconsideration and because we lack
jurisdiction to consider her unexhausted claims, her petition for review is
DISMISSED in part and DENIED in part.
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