Chhetri v. Garland ( 2023 )

Case: 23-60184 Document: 00516932635 Page: 1 Date Filed: 10/16/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
October 16, 2023
No. 23-60184
Lyle W. Cayce
Summary Calendar
Clerk
____________
Nitesh Chhetri,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A201 755 304
______________________________
Before King, Haynes, and Graves, Circuit Judges.
Per Curiam:*
Nitesh Chhetri, a native and citizen of Nepal, petitions for review of
an order of the Board of Immigration Appeals (BIA) denying his motion to
reopen. Motions to reopen are “particularly disfavored.” Nguhlefeh Njilefac
v. Garland, 992 F.3d 362, 365 n.3 (5th Cir. 2021). Consequently, we review
the BIA’s denial of such motions “under a highly deferential abuse-of-
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-60184 Document: 00516932635 Page: 2 Date Filed: 10/16/2023
No. 23-60184
discretion standard.” Ovalles v. Rosen, 984 F.3d 1120, 1123 (5th Cir. 2021)
(internal quotation marks and citation omitted). Under this standard, we will
affirm unless the agency’s decision is “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.”
Nguhlefeh Njilefac, 992 F.3d at 365 (internal quotation marks and citation
omitted). Chhetri has not met this standard.
He shows no error in connection with the BIA’s determination that
he had not shown that he was prejudiced by counsels’ alleged deficiencies
and, concomitantly, shows no error in the BIA’s conclusion that he had not
shown he was eligible for equitable tolling. See Eneugwu v. Garland, 54 F.4th
315, 319 (5th Cir. 2022); Diaz v. Sessions, 894 F.3d 222, 227-28 (5th Cir.
2018). Because he does not make the prejudice showing, we need not
consider his arguments concerning diligence. See INS v. Bagamasbad, 429
U.S. 24, 25 (1976).
As the Respondent notes, Chhetri failed to exhaust his claims
concerning translation issues and whether the attorney who represented him
in his first appeal should have raised ineffective assistance issues. Because
the Respondent raises exhaustion, we will enforce this claim-processing rule
and decline to consider these issues. See Carreon v. Garland, 71 F.4th 247,
257 (5th Cir. 2023). The petition for review is DENIED.
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