Maria Escobar-Landaverde v. Eric Holder, Jr. , 428 F. App'x 332 ( 2011 )

Case: 10-60744 Document: 00511503659 Page: 1 Date Filed: 06/09/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 9, 2011
No. 10-60744
Summary Calendar Lyle W. Cayce
Clerk
MARIA ROSA ESCOBAR-LANDAVERDE,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A029 938 459
Before KING, HIGGINBOTHAM, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Maria Rosa Escobar-Landaverde (Escobar), a native and citizen of El
Salvador, petitions this court for review of the decision of the Board of
Immigration Appeals (BIA) denying her motion for reconsideration of the
dismissal of her appeal from the Immigration Judge’s denial of her motion to
reopen the deportation proceedings that were commenced against her in 1990
and denying her motion to sua sponte reopen the proceedings. Escobar argues
that she did not receive proper service of the Order to Show Cause (OSC) or the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-60744
subsequently mailed notice of her deportation hearing and that she
demonstrated reasonable cause for failing to attend her deportation hearing.
She argues that the BIA failed to recognize that Immigration and Naturalization
Service officials erred in documenting her address on the OSC and were
therefore directly responsible for her lack of notice. She also asserts that the
BIA erred by failing to accord precedential value to its published decision in
Matter of G-Y-R, 23 I. & N. Dec. 181, failing to find that there was reasonable
cause for her failure to appear at the hearing, and failing to accept her sworn
statement as true. She also reasserts her argument that the order entered in
absentia should be rescinded, among other reasons, because she was not notified
that her deportation hearing had been rescheduled from May 17, 1990 to May
21, 1990.
Because the authority to reopen an immigration proceeding sua sponte is
entirely discretionary, we lack jurisdiction to review a challenge to the BIA’s
refusal to exercise its sua sponte authority to reopen removal proceedings.
Lopez-Dubon v. Holder, 609 F.3d 642, 647 (5th Cir. 2010), cert. denied, ___ S. Ct.
___, 2011 WL 1529750 (2011); Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249-
50 (5th Cir. 2004). Accordingly, Escobar’s petition for review is dismissed, in
part, on this basis, and we will not consider Escobar’s arguments challenging the
BIA’s failure to sua sponte reopen the proceedings. See Ramos-Bonilla v.
Mukasey, 543 F.3d 216, 220 (5th Cir. 2008); Khan v. Holder, 384 F. App’x 355,
356 (5th Cir. 2010).
We review the BIA’s denial of a motion for reconsideration under a highly
deferential abuse-of-discretion standard. See Lara v. Trominski, 216 F.3d 487,
496-97 (5th Cir. 2000); Osuchukwu v. INS, 744 F.2d 1136, 1141 (5th Cir. 1984).
Under this standard, we must uphold the BIA’s denial of a motion for
reconsideration, even if the court “deem[s it] in error, so long as it is not
capricious, racially invidious, utterly without foundation in the evidence, or
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No. 10-60744
otherwise so aberrational that it is arbitrary rather than the result of any
perceptible rational approach.” Osuchukwu, 744 F.2d at 1142.
Former section 242(b) of the Immigration and Nationality Act, codified as
8 U.S.C. § 1252(b), applies to deportation orders that were entered before 1992,
as in Escobar’s case. Former section 242(b) did not prescribe the method by
which service of the OSC or the hearing notice must be made, nor did it require
that immigration officials notify aliens of their obligation to update their
addresses. Rather, § 242(b) required that an “alien shall be given notice,
reasonable under all the circumstances, of the nature of the charges against him
and of the time and place at which the proceedings will be held.” The statute did
“not impose a more stringent notice requirement on the INS than required by
the Constitution.” United States v. Estrada-Trochez, 66 F.3d 733, 736 n.1 (5th
Cir. 1995). Moreover, at that time, an alien had an obligation to notify the
Attorney General of any changes to her address. 8 U.S.C. § 1305(a) (1986).
The BIA determined that Escobar was personally served with the OSC, as
evidenced by her fingerprint on the certificate of service, and that Escobar was
given reasonable notice under the circumstances. Although Escobar provided
an affidavit in support of her motion, she did not attest that she did not receive
the OSC, nor did she deny that it was her fingerprint on the OSC. Thus, to the
extent that the BIA made the factual finding that Escobar was served with the
OSC, the evidence does not compel a contrary conclusion. See Gomez-Palacios
v. Holder, 560 F.3d 354, 358 (5th Cir. 2009).
In addition, although Escobar argues that she failed to receive the notice
informing her of her hearing date because the OSC did not note her correct
mailing address, Escobar failed to correct the error upon receiving the OSC.
Moreover, she attested that she moved during the first week of April 1990, which
was less than one week after she was served with the OSC, but she never
informed immigration agents of her new address, as she was obligated to do. See
§ 1305. Accordingly, the BIA determined that even though Escobar did not
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No. 10-60744
actually receive the notice of the hearing, “when the notice of hearing was mailed
to [her] . . . less than 2 weeks after the OSC was served on her, it was reasonable
under the circumstances.”
Escobar has not shown any error in the BIA’s determination that she
failed to demonstrate reasonable cause for her failure to appear. See Estrada-
Trochez, 66 F.3d at 735-36. Notwithstanding her challenges to the BIA’s
findings, Escobar has failed to demonstrate that the BIA’s denial of her motion
for reconsideration was arbitrary, capricious, racially invidious, or utterly
without foundation in evidence. See Osuchukwu, 744 F.2d at 1142. Thus, we
conclude that the BIA did not abuse its discretion in denying her motion for
reconsideration. See Lara, 216 F.3d at 496.
Accordingly her petition for review is DENIED in part and DISMISSED
in part for lack jurisdiction.
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