Jose Mejia-Urbina v. William Barr, U. S. Atty Gen

Case: 19-60476 Document: 00515593969 Page: 1 Date Filed: 10/07/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 19-60476 October 7, 2020
Summary Calendar Lyle W. Cayce
Clerk
Jose Alfredo Mejia-Urbina,
Petitioner,
versus
William P. Barr, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A096 175 967
Before Wiener, Southwick, and Duncan, Circuit Judges.
Per Curiam:*
Petitioner Jose Alfredo Mejia-Urbina, a native and citizen of El
Salvador, seeks review of an order of the Board of Immigration Appeals
(“BIA”) denying his motion to reopen his removal proceedings.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 19-60476
Denial of a motion to reopen is reviewed “under a highly deferential
abuse-of-discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir.
2005). The BIA’s decision will be upheld “as long as it is not capricious,
without foundation in the evidence, or otherwise so irrational that it is
arbitrary rather than the result of any perceptible rational approach.” Gomez-
Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009) (citing Singh v. Gonzales,
436 F.3d 484, 487 (5th Cir. 2006)). Factual findings are reviewed for
substantial evidence, meaning that they will not be overturned “unless the
evidence compels a contrary conclusion.” Id. (citing Chun v. INS, 40 F.3d
76, 78 (5th Cir. 1994)).
As we noted in a prior opinion, Mejia-Urbina was personally served
with a notice to appear (“NTA”). Mejia-Urbina v. Sessions, 712 F. App’x
469, 469 (5th Cir. 2018) (unpublished). The signed NTA contained the
address to which the hearing notice was mailed. Id. It also advised Mejia-
Urbina of his obligation to notify the immigration court of his full mailing
address and advised him of the consequences of failing to appear at a hearing.
Id. He was orally advised of this obligation in Spanish. Id.Relying on Pereira v. Sessions, 138 S. Ct. 2105 (2018), Mejia-Urbina
now contends that his NTA did not end his continuous physical presence in
the United States because it did not specify the date and time of his removal
hearing. Mejia-Urbina thus argues that the BIA abused its discretion by
denying his motion to reopen based on its finding that he was not prima facie
eligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1). He also
argues that the BIA abused its discretion by finding his motion untimely
without properly analyzing his arguments for equitable tolling.
We need not decide whether the BIA properly held that Mejia-
Urbina’s motion to reopen was untimely and that he was not entitled to
equitable tolling. Even assuming that his motion was timely, the BIA did not
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No. 19-60476
abuse its discretion in denying the motion on the alternative ground that
Mejia-Urbina failed to show entitlement to cancellation of removal. See
Yanez-Pena v. Barr, 952 F.3d 239, 241 (5th Cir. 2020), petition for cert. filed
(U.S. Apr. 6, 2020) (No. 19-1208).
Turning to Mejia-Urbina’s contention that Pereira v. Sessions
precludes us from denying his petition, this court held since Pereira v. Sessions
was decided that a perfected NTA triggers the stop-time rule when an alien
receives all required information, whether in one document or more. Yanez-
Pena, 952 F.3d at 241. Here, the NTA was perfected, and the stop-time rule
was triggered, when the immigration court mailed the hearing notice to the
address Mejia-Urbina provided. Although a petition for certiorari has been
granted by the United States Supreme Court addressing the two step process
applied in Yanez-Pena, see Niz-Chavez v. Barr, 2020 WL 3038288 (U.S. June
8, 2020) (No. 19-863), this court is bound by its precedents unless and until
those precedents are altered by a decision of the Supreme Court. Wicker v.
McCotter, 798 F.2d 155, 157-58 (5th Cir. 1986). That has not yet happened.
The petition for review is therefore DENIED.
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