Mosivais-Avalos v. Garland ( 2023 )

Case: 23-60185 Document: 00516981385 Page: 1 Date Filed: 11/28/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 23-60185 November 28, 2023
Summary Calendar Lyle W. Cayce
____________ Clerk
Fermin Fernando Mosivais-Avalos,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A075 374 915
______________________________
Before Barksdale, Graves, and Oldham, Circuit Judges.
Per Curiam: *
Fermin Fernando Mosivais-Avalos, a native and citizen of Mexico,
petitions for review of the Board of Immigration Appeals’ (BIA) denying his
motion to reopen. His motion asserted counsel rendered ineffective
assistance by failing to: challenge the termination of his conditional
permanent resident (CPR) status; and submit documents relevant to another
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-60185 Document: 00516981385 Page: 2 Date Filed: 11/28/2023
No. 23-60185
application for adjustment of status. The BIA denied his motion after
concluding Mosivais had not: submitted previously unavailable evidence;
shown prima-facie eligibility for adjustment of status; or complied with the
requisite procedural requirements.
Motions to reopen are “disfavored”. Nguhlefeh Njilefac v. Garland,
992 F.3d 362, 365 n.3 (5th Cir. 2021). Our court reviews the BIA’s denial
“under a highly deferential abuse-of-discretion standard”. Ovalles v. Rosen,
984 F.3d 1120, 1123 (5th Cir. 2021) (citation omitted). The BIA’s decision
will not be disturbed unless it 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 (citation omitted).
Mosivais fails to brief, and therefore abandons, his challenges to the
BIA’s conclusions that he failed to submit previously unavailable evidence
and had not shown prima-facie eligibility. See Lopez-Perez v. Garland, 35 F.4th
953, 957 n.1 (5th Cir. 2022) (forfeiting specific contentions on appeal by not
briefing); Matter of Coelho, 20 I. & N. Dec. 464, 471–73 (BIA 1992) (failing to
provide previously unavailable evidence is grounds for denial); Parada-
Orellana v. Garland, 21 F.4th 887, 893 (5th Cir. 2022) (failing to make prima-
facia showing of relief is grounds for denial).
His failure to show prima-facie eligibility is dispositive for his
adjustment-of-status claim. See Lopez-Perez, 35 F.4th at 957 n.1; Parada-
Orellana, 21 F.4th at 893. He also does not show any error in the BIA’s
concluding he failed to comply with the requisite procedural requirements.
See Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988) (requiring motion
to “reflect whether a complaint” was filed regarding representation, “and if
not, why not”).
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Case: 23-60185 Document: 00516981385 Page: 3 Date Filed: 11/28/2023
No. 23-60185
Because failure to comply with Lozada is sufficient to uphold the
BIA’s conclusion concerning his CPR claim, our court need not consider
Mosivais’ remaining contentions. See INS v. Bagamasbad, 429 U.S. 24, 25
(1976) (“[C]ourts and agencies are not required to make findings on issues
the decision of which is unnecessary to the results they reach.”); Rodriguez-
Manzano v. Holder, 666 F.3d 948, 953 (5th Cir. 2012) (affirming BIA’s
denying motion to reopen).
DENIED.
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