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Melgar-Lara v. Garland ( 2023 )


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  • Case: 22-60178         Document: 00516697564              Page: 1       Date Filed: 03/31/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-60178
Summary Calendar                                       FILED
March 31, 2023
Lyle W. Cayce
Abiezer Ornan Melgar-Lara,                                                               Clerk
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A077 693 528
Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam:*
Abiezer Ornan Melgar-Lara, a native and citizen of Honduras, timely
petitions us for review of a Board of Immigration Appeals (BIA) decision
denying his motion to reopen. He entered the United States in 1999 and was
ordered removed in absentia in 2000, but moved to reopen his case in 2020.
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-60178        Document: 00516697564              Page: 2       Date Filed: 03/31/2023
No. 22-60178
Motions to reopen are disfavored. Lara v. Trominski,
    216 F.3d 487
    ,
496 (5th Cir. 2000). Accordingly, this court reviews the denial of a motion
to reopen under a “highly deferential abuse of discretion standard.”
    Id.
     This
standard requires a ruling to stand, even if this court concludes that it is
erroneous, “so long as it is not 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.” Zhao v. Gonzales,
    404 F.3d 295
    , 304 (5th Cir. 2005) (internal quotation marks and citation omitted).
We do not find that Melgar-Lara’s motion should have been
considered because of any issues with the Notice to Appear or notice of his
removal hearing. The record reflects that he did not keep the immigration
court informed about his address, as is his duty. See Gomez-Palacios v. Holder,
    560 F.3d 354
    , 360-61 (5th Cir. 2009); Hernandez-Castillo v. Sessions,
    875 F.3d 199
    , 205 (5th Cir. 2017). He therefore waived his right to notice. See Spagnol-
Bastos v. Garland,
    19 F.4th 802
    , 806 (5th Cir. 2021). 1
Further, we do not find that Melgar-Lara’s motion should have been
considered because of a change in country conditions. His affidavit indicates
that he fled to the United State in 1999 based on fear of death from gang
violence, so we do not accept his argument that gang violence was not a
serious issue at that time.
Finally, we lack jurisdiction to consider his arguments regarding his
unexhausted argument that his proceedings should be reopened due to
exceptional circumstances, see Wang v. Ashcroft,
    260 F.3d 448
    , 452-53 (5th
1
Melgar-Lara provided an address in Florida despite the fact that he was living in
Pennsylvania. The notices sent to the Florida address contained a scrivener error, which
he protests. The Immigration Judge (IJ) found that irrelevant because Melgar-Lara never
gave his proper address. He has not explained why he gave the Florida address and who
lived there, so he has not established an error by the IJ adopted by the BIA.
2
Case: 22-60178     Document: 00516697564          Page: 3   Date Filed: 03/31/2023
No. 22-60178
Cir. 2001), and his argument regarding sua sponte reopening.            See
Altamirano-Lopez v. Gonzales,
    435 F.3d 547
    , 550 (5th Cir. 2006).
DENIED in part; DISMISSED in part.
3