Alas-Elias v. Garland ( 2023 )

Case: 22-60324 Document: 00516693202 Page: 1 Date Filed: 03/29/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 22-60324 March 29, 2023
Summary Calendar Lyle W. Cayce
____________ Clerk
Jenny Maricela Alas-Elias,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A098 680 641
______________________________
Before Barksdale, Elrod, and Haynes, Circuit Judges.
Per Curiam: *
Jenny Maricela Alas-Elias, a native and citizen of El Salvador,
petitions for review of the Board of Immigration Appeals’ (BIA) dismissing
her appeal of the Immigration Judge’s (IJ) denying her motion to reopen and
application for cancellation of removal.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-60324 Document: 00516693202 Page: 2 Date Filed: 03/29/2023
No. 22-60324
Our court reviews the BIA’s decision and considers the IJ’s decision
only to the extent it influenced the BIA. E.g., Vetcher v. Barr, 953 F.3d 361,
366 (5th Cir. 2020). We review denial of a motion to reopen “under a highly
deferential abuse-of-discretion standard”. Gudiel-Villatoro v. Garland, 40
F.4th 247, 248 (5th Cir. 2022).
Alas maintains the BIA erred in denying her challenge to her notice to
appear. Because she failed to provide an address at which she could be
reached, she may not reopen her in absentia proceedings on the ground that
her notice to appear was defective. E.g., id. at 249 (“[A]n alien forfeits his
right to notice by failing to provide a viable mailing address and cannot seek
to reopen the removal proceedings and rescind the in abstentia removal order
for lack of notice”. (citation omitted)).
She also contends the BIA erroneously determined: she failed to show
her children would experience the requisite level of hardship for cancellation
of removal; and that sua sponte regulatory reopening was not warranted. Our
court lacks jurisdiction to review these assertions. E.g., Castillo-Gutierrez v.
Garland, 43 F.4th 477, 481 (5th Cir. 2022) (stating hardship determination
“is a discretionary and authoritative decision . . . beyond [this court’s]
review”); Gonzalez-Cantu v. Sessions, 866 F.3d 302, 306 (5th Cir. 2017)
(explaining this court lacks jurisdiction to consider BIA’s refusal to reopen
sua sponte because ruling is discretionary).
DISMISSED in part; DENIED in part.
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