Sabillon-Abrigo v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 22, 2006
Charles R. Fulbruge III
Clerk
No. 05-61166
Summary Calendar
OLGA MARITZA SABILLON-ABRIGO,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A28 320 041
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Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Olga Maritza Sabillon-Abrigo (Sabillon) petitions for review
of the Board of Immigration Appeals’ (BIA’s) affirmance of the
denial of her motion to reopen deportation proceedings. Sabillon
failed to exhaust her argument that she was improperly barred
from adjustment of status when there were no penalties relevant
to adjustment of status in effect at the time of her deportation
order and she was not served with an I-205 warrant or deportation
order. Therefore, we lack jurisdiction to consider it. 8 U.S.C.
*
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this opinion should not be published and is not precedent except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.
No. 05-61166
-2-
§ 1252(d)(1); Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th Cir. 2001).
Sabillon additionally argues that she was wrongfully denied
adjustment of status because more than 10 years had passed
between her overstay of voluntary departure and the filing of her
application for adjustment of status. We do not address this
claim because we hold that the BIA did not abuse its discretion
in denying her motion to reopen as untimely. See Pritchett v.
INS, 993 F.2d 80, 83 (5th Cir. 1993). The BIA’s finding that
Sabillon was not ordered deported in absentia is supported by
substantial evidence. See Mikhael v. INS, 115 F.3d 299, 302 (5th
Cir. 1997). Sabillon therefore cannot seek to reopen her
deportation proceedings “at any time” on the basis that she
received inadequate notice. See 8 C.F.R. § 1003.23(b)(4)(ii).
She was thus required to file her motion to reopen within the
prescribed limitations period, i.e., on or before September 30,
1996. See id. § 1003.23(b)(1). As she did not, the BIA’s
determination that her motion was untimely was not an abuse of
discretion.
PETITION DENIED.