Jimmy Rodriguez Auceda v. William Barr, U. S. Atty

Case: 18-60673 Document: 00515217445 Page: 1 Date Filed: 11/29/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 18-60673 FILED November 29, 2019 Summary Calendar Lyle W. Cayce Clerk JIMMY NOE RODRIGUEZ AUCEDA, Petitioner v. WILLIAM P. BARR, U. S. ATTORNEY GENERAL, Respondent Petition for Review of an Order of the Board of Immigration Appeals BIA No. A077 530 638 Before SMITH, DENNIS, and DUNCAN, Circuit Judges. PER CURIAM: * Jimmy Noe Rodriguez Auceda, a native and citizen of Honduras, petitions this court for review of the decision of the Board of Immigration Appeals (BIA) dismissing his appeal of the denial by an immigration judge (IJ) of his motion to reopen after an in absentia removal order. He argues that the BIA and IJ ignored the applicable precedential decisions of this court and * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Case: 18-60673 Document: 00515217445 Page: 2 Date Filed: 11/29/2019 No. 18-60673 erroneously determined that he had not rebutted the presumption of delivery afforded to the properly addressed and mailed notice of hearing. Rodriguez Auceda argues, for the first time, that his notice to appear was defective for failing to specify a time or place for his removal hearing and, in light of Pereira v. Sessions, 138 S. Ct. 2105 (2018), we should remand his case for further consideration. As Rodriguez Auceda failed to challenge the sufficiency of the notice to appear before the BIA, we lack jurisdiction to review his argument on petition for review. See Nunez v. Sessions, 882 F.3d 499, 505 n.2 (5th Cir. 2018). Even if we had jurisdiction, Rodriguez Auceda’s argument would be foreclosed by our recent decision in Pierre-Paul v. Barr, 930 F.3d 684, 689 (5th Cir. 2019) (holding that a notice to appear is not defective as a charging document even if it omits the time or place of the initial hearing). We review the final decision of the BIA and also will review the IJ’s ruling insofar as it affected the BIA’s decision. Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007). Motions to reopen removal proceedings are disfavored, and we thus review the BIA’s denial of a motion to reopen “under a highly deferential abuse-of-discretion standard.” Mauricio-Benitez v. Sessions, 908 F.3d 144, 147 (5th Cir. 2018) (internal quotation marks and citation omitted), cert. denied, 139 S. Ct. 2767 (2019). Under that standard, we must affirm the BIA’s decision “[s]o long as [it] is not 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.” Nunez, 882 F.3d at 505 (internal quotation marks and citation omitted). We review the BIA’s factual findings using “the substantial-evidence standard, which means that we cannot reverse the BIA’s factual determinations unless the evidence ...

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