Man Tamang v. Eric Holder, Jr.

Case: 13-60709 Document: 00512773927 Page: 1 Date Filed: 09/18/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-60709 September 18, 2014
Summary Calendar
Lyle W. Cayce
Clerk
MAN BAHADUR TAMANG, also known as Man Bahodor Tamang,
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. A099 536 083
Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Man Bahadur Tamang (Tamang), a native and citizen of Nepal, seeks
review of a decision of the Board of Immigration Appeals (BIA) dismissing the
appeal of the denial of his 2013 motion to rescind the in absentia removal order
and reopen his removal proceedings that were initiated in 2006. We review
the denial of a motion to reopen “under a highly deferential abuse-of-discretion
standard.” Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). Factual
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-60709
findings are reviewed for substantial evidence and determinations of law are
reviewed de novo. Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007). Under
the substantial evidence standard, reversal is improper unless this court
decides “not only that the evidence supports a contrary conclusion, but also
that the evidence compels it.” Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir.
2006) (internal quotation marks and citation omitted). Where, as here, the
BIA decision is influenced by the decision of the Immigration Judge (IJ), we
also consider the IJ’s findings of fact and conclusions of law. Mikhael v. INS,
115 F.3d 299, 302 (5th Cir. 1997).
LACK OF NOTICE
Removal proceedings under 8 U.S.C. § 1229a shall be initiated by written
notice given in person to the alien, or, if personal service is not practicable,
through service by mail to the alien or his counsel of record. 8 U.S.C.
§ 1229(a)(1). An in absentia removal order may be rescinded upon a motion to
reopen at any time if the alien establishes that he did not receive notice in
accordance with § 1229(a)(1) or (2). § 1229a(b)(5)(C)(ii); Maknojiya v. Gonzales,
432 F.3d 588, 589 (5th Cir. 2005). In this case, there is no dispute that Tamang
was personally served with the notice to appear at the hearing. Tamang
argues that he did not receive adequate notice because he received the notice
in English and Hindi, languages he does not understand. Tamang has
presented no legal argument to support his assertion that he must have been
given notice in Nepali. Contrary to his assertion, “[d]ue process allows notice
of a hearing to be given solely in English to a non-English speaker if the notice
would put a reasonable recipient on notice that further inquiry is required.”
Ojeda-Calderon v. Holder, 726 F.3d 669, 675 (5th Cir. 2013). Tamang has not
shown that the BIA abused its discretion on this point.
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No. 13-60709
CHANGED COUNTRY CONDITIONS
Ordinarily, a motion to reopen must be filed in the BIA “no later than 90
days after the date on which the final administrative decision was rendered in
the proceeding sought to be reopened.” 8 C.F.R. § 1003.2(c)(2). No time bar
applies, however, if the motion is based on “changed circumstances arising in
the country of nationality or in the country to which deportation has been
ordered, if such evidence [of change] is material and was not available and
could not have been discovered or presented at the previous hearing.”
§ 1003.2(c)(3)(ii). Tamang argues that he is entitled to the reopening of his
removal proceedings on the basis of changed country conditions in Nepal since
the time of his original removal proceedings in 2006. Both the BIA and the IJ
rejected this argument because Tamang based his assertion of changed
conditions on incidents occurring before he entered the United States. To
support his current petition, Tamang cites only to the evidence which cannot
be considered because it was not presented to the IJ. See Enriquez-Gutierrez
v. Holder, 612 F.3d 400, 409-10 (5th Cir. 2010). He has not shown that the BIA
abused its discretion on this basis.
Finally, we lack jurisdiction to review the BIA’s discretionary refusal to
reopen the removal proceedings via its sua sponte authority. See Ramos-
Bonilla v. Mukasey, 543 F.3d 216, 220 (5th Cir. 2008). Accordingly, the petition
for review is DENIED, in part, and DISMISSED, in part.
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