Rosa Navarrete-Lopez v. William Barr, U. S. Atty G ( 2020 )

Case: 19-60415 Document: 00515604496 Page: 1 Date Filed: 10/16/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 16, 2020
No. 19-60415 Lyle W. Cayce
Summary Calendar Clerk
Rosa Maria Navarrete-Lopez,
Petitioner,
versus
William P. Barr, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A098 042 434
Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
Rosa Maria Navarette-Lopez, a native and citizen of El Salvador,
petitions for review of the decision of the Board of Immigration Appeals
(BIA) denying her motion to reopen and terminate her removal proceedings
*
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opinion should not be published and is not precedent except under the limited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: 19-60415 Document: 00515604496 Page: 2 Date Filed: 10/16/2020
No. 19-60415
in light of Pereira v. Sessions, 138 S. Ct. 2105 (2018). We address her
contentions in turn.
Navarette-Lopez’s argument that the BIA abused its discretion by
finding her motion to reopen untimely is moot because the Board did not
dismiss the motion on timeliness grounds.
There is no merit to Navarette-Lopez’s Pereira-based contentions
that, owing the failure of the Notice to Appear to list the date and time of the
removal hearing—and notwithstanding her receipt of a corrective Notice of
Hearing—she did not receive proper statutory notice of the hearing, the
immigration court lacked jurisdiction to order her removed, and the “stop-
time” rule of 8 U.S.C. § 1229b(d)(1)(A) was never triggered, rendering her
eligible for cancellation of removal. Both the BIA and this court have
previously rejected such arguments. See Pierre-Paul v. Barr, 930 F.3d 684,
688-93 (5th Cir. 2019), cert. denied, 140 S. Ct. 2718 (2020); Matter of
Mendoza-Hernandez, 27 I. & N. Dec. 520, 529-35 (BIA 2019); see also Yanez-
Pena v. Barr, 952 F.3d 239, 245-46 (5th Cir. 2020), petition for cert. filed (U.S.
Apr. 8, 2020) (No. 19-1208).
We may consider Navarette-Lopez’s argument that the BIA erred by
not exercising its discretion to reopen her removal proceedings sua sponte
because she raises legal and constitutional challenges to that decision. See
Mejia v. Whitaker, 913 F.3d 482, 490 (5th Cir. 2019). However, her
arguments that the Board abused its discretion by not exercising its sua
sponte discretion and, by doing so, violated her due process and equal
protection rights are unavailing. “[D]ue process claims are not cognizable in
the context of reopening proceedings.” Id. Moreover, to the extent
Navarette-Lopez’s due process claim relies on Pereira, it lacks merit. See
Pierre-Paul, 930 F.3d at 688-93. Lastly, there is no equal protection violation
because, under Pierre-Paul and Mendoza-Hernandez, aliens served with a
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Case: 19-60415 Document: 00515604496 Page: 3 Date Filed: 10/16/2020
No. 19-60415
valid Notice to Appear and aliens served with an initially defective Notice to
Appear that is subsequently cured by a Notice of Hearing are treated the
same with respect to the immigration court’s jurisdiction and the
presumption of proper notice. See generally United States v. Abou-Kassem, 78
F.3d 161, 165 (5th Cir. 1996).
Navarette-Lopez fails to show that the BIA abused its discretion by
denying her motion to reopen. See Barrios-Cantarero v. Holder, 772 F.3d
1019, 1021 (5th Cir. 2014). Accordingly, the petition for review is DENIED.
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