Yader Rojas-Guerrero v. Jefferson Sessions, III , 691 F. App'x 220 ( 2017 )

Case: 16-60258 Document: 00514053077 Page: 1 Date Filed: 06/28/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-60258
Fifth Circuit
FILED
Summary Calendar June 28, 2017
Lyle W. Cayce
YADER ENRIQUE ROJAS-GUERRERO, Clerk
Petitioner,
v.
JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A200 005 888
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
Yader Enrique Rojas-Guerrero, a native and citizen of Nicaragua,
challenges the decision of the Board of Immigration Appeals (BIA) affirming
the Immigration Judge’s (IJ) denial of his motion to reopen removal
proceedings and rescind the in absentia removal order. The BIA concluded
that Rojas-Guerrero was not entitled to actual notice of the removal hearing,
because he had not provided a mailing address; that it was irrelevant whether
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 16-60258 Document: 00514053077 Page: 2 Date Filed: 06/28/2017
No. 16-60258
he had received a list of free legal services available to him, given his non-
compliance with the address requirement; that he had not demonstrated he
was prima facie eligible for adjustment of status; and that nothing warranted
reopening of the removal proceedings sua sponte. Rojas-Guerrero argues that
this was error. We review the denial of a motion to reopen “under a highly
deferential abuse-of-discretion standard.” Barrios-Cantarero v. Holder, 772
F.3d 1019, 1021 (5th Cir. 2014) (quoting Zhao v. Gonzales, 404 F.3d 295, 303
(5th Cir. 2007)).
As to Rojas-Guerrero’s first argument, we have repeatedly held that “an
alien’s failure to receive actual notice of a removal hearing due to his neglect
of his obligation to keep the immigration court apprised of his current mailing
address does not mean that the alien ‘did not receive notice.’” Gomez-Palacios
v. Holder, 560 F.3d 354, 360-61 (5th Cir. 2009). Rojas-Guerrero was personally
served with a Notice to Appear (NTA), which stated that he was required to
provide a mailing address and telephone number where he could be reached;
that failure to do so meant that the Government was not required to provide
written notice of hearing; and that failure to attend the hearing could result in
removal in absentia. Rojas-Guerrero was orally informed, in Spanish, of the
consequences of failing to appear. He cites no case law from this circuit in
support of the argument that his failure to provide a mailing address is
somehow justified because he was not provided with a list of free legal services.
Further, because he was already aware from the NTA that he was required to
provide an address or risk deportation in absentia, Rojas-Guerrero suffered no
prejudice and has not demonstrated a violation of his due process rights. See
Rosales v. Bureau of Immigration & Customs Enf’t, 426 F.3d 733, 736-37 (5th
Cir. 2005). This portion of the petition is denied.
2
Case: 16-60258 Document: 00514053077 Page: 3 Date Filed: 06/28/2017
No. 16-60258
As to Rojas-Guerrero’s second argument, we lack jurisdiction to review
the BIA’s decision not to exercise its discretion to reopen the proceedings. See
Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248-50 (5th Cir. 2004). The
Supreme Court’s recent decision in Mata v. Lynch, 135 S. Ct. 2150 (2015), does
not disturb our prior precedent on this point. See Oliveira v. Lynch, 670 F.
App’x 307, 308 (5th Cir. 2016). 1 This portion of the petition is dismissed.
DENIED IN PART AND DISMISSED IN PART.
1 Although an unpublished opinion issued after January 1, 1996, is not controlling
precedent, it may be considered as persuasive authority. See Ballard v. Burton, 444 F.3d
391, 401 & n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).
3