David Zavaleta Mejia v. William Barr, U. S. Atty G ( 2020 )

Case: 19-60462 Document: 00515625319 Page: 1 Date Filed: 11/03/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 19-60462
November 3, 2020
Summary Calendar
Lyle W. Cayce
Clerk
David Alberto Zavaleta Mejia,
Petitioner,
versus
William P. Barr, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A216 074 509
Before JOLLY, ELROD, and GRAVES, Circuit Judges.
Per Curiam:*
David Alberto Zavaleta Mejia, a native and citizen of El Salvador,
petitions for review of an order of the Board of Immigration Appeals (BIA)
that dismissed his appeal from the denial of his application for withholding of
removal and for protection under the Convention Against Torture (CAT)
*
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opinion should not be published and is not precedent except under the limited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: 19-60462 Document: 00515625319 Page: 2 Date Filed: 11/03/2020
No. 19-60462
and denied his motion to remand the proceeding to consider his eligibility for
cancellation of removal. On appeal, he presents claims that pertain only to
the denial of his motion for remand. Therefore, he has abandoned any
challenge to the BIA’s determinations as to his requests for withholding of
removal and protection under CAT. See Soadjede v. Ashcroft, 324 F.3d 830,
833 (5th Cir. 2003).
We review the denial of a motion for remand under the same highly
deferential abuse-of-discretion standard that applies to a motion to reopen.
See Milat v. Holder, 755 F.3d 354, 365 (5th Cir. 2014). The BIA’s decision
will be upheld as long as it is not capricious, racially invidious, utterly without
foundation in the evidence, or otherwise so irrational that it is arbitrary. Zhao
v. Gonzales, 404 F.3d 295, 304 (5th Cir. 2005).
Relying on Pereira v. Sessions, 138 S. Ct. 2105 (2018), Zavaleta Mejia
argues that service of his notice to appear did not end his continuous physical
presence in the United States because that notice did not specify the date and
time of his initial removal hearing. He contends that Pereira did not establish
that a later-issued notice of hearing may perfect the notice to appear and end
a noncitizen’s period of continuous presence. Zavaleta Mejia argues that the
BIA, which relied on its decision in Matter of Mendoza-Hernandez, 27 I. & N.
Dec. 520 (BIA 2019), wrongly decided that his motion for remand should be
denied because he was ineligible for cancellation of removal under 8 U.S.C.
§ 1229b(b)(1).
After Pereira, we have held, consistent with Mendoza-Hernandez, that
a notice to appear is perfected, and an alien’s continuous physical presence
ends, when he receives all required information, even if the information is set
forth in more than one document. Yanez-Pena v. Barr, 952 F.3d 239, 241, 245
(5th Cir. 2020), petition for cert. filed (U.S. Apr. 6, 2020) (No. 19-1208);
see also Pierre-Paul v. Barr, 930 F.3d 684, 690 (5th Cir. 2019), cert. denied, 140
2
Case: 19-60462 Document: 00515625319 Page: 3 Date Filed: 11/03/2020
No. 19-60462
S. Ct. 2718 (2020). Zavaleta Mejia therefore was not eligible for cancellation
of removal. His notice to appear was perfected, and his period of continuous
physical presence ended, when the immigration court mailed a hearing notice
to him that contained the required information. See Yanez-Pena, 952 F.3d at
241, 245-46. The service of the notice of hearing was done within 10 years of
his entry into the United States. See 8 U.S.C. § 1229b(b)(1).
Therefore, the BIA did not abuse its discretion by denying the motion
to remand. See Yanez-Pena, 952 F.3d at 245-46; Milat, 755 F.3d at 365. The
petition for review is DENIED.
3