Alma Guillen v. Eric Holder, Jr.

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UNPUBLISHED OPINION FILED. [09-60910 Affirmed ] Judge: EGJ , Judge: EMG , Judge: CES Mandate pull date is 11/22/2010 [09-60910]

Alma Guillen v. Eric Holder, Jr.

Doc. 0

Case: 09-60910

Document: 00511250827

Page: 1

Date Filed: 10/01/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-60910 S u m m a r y Calendar October 1, 2010 Lyle W. Cayce Clerk

A L M A DEYANIRA GUILLEN, P e titio n e r v. E R I C H. HOLDER, JR., U. S. ATTORNEY GENERAL, R espon dent

P e tit io n for Review of an Order of the B o a r d of Immigration Appeals B I A No. A096 785 211

B e fo r e JOLLY, GARZA, and STEWART, Circuit Judges. P E R CURIAM:* A lm a Deyanira Guillen, a native and citizen of Mexico, petitions this court fo r review of the Board of Immigration Appeals' (BIA) decision dismissing her a p p e a l of the Immigration Judge's (IJ) denial of the motion to reopen her in a b s e n t ia removal proceedings. Guillen does not dispute that she was removable a s charged, and she has abandoned any challenge to the BIA's determination t h a t she received the required statutory notice. See Soadjede v. Ashcroft, 324 F .3 d 830, 833 (5th Cir. 2003).
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 09-60910

Document: 00511250827 Page: 2 No. 09-60910

Date Filed: 10/01/2010

I n s t e a d , she contends that her attorney mistakenly informed her that the h e a r i n g was scheduled for 1:30 p.m., rather than 9:00 a.m. Because she

a p p e a r e d at the time her attorney told her to appear, Guillen argues that her la t e appearance should not have been considered a failure to appear. Alternatively, Guillen argues that she demonstrated exceptional circumstances fo r her failure to appear. T h e BIA determined that Guillen had not provided any details of the c ir c u m s t a n c e s surrounding her late arrival, including whether she spoke with im m ig r a t io n court personnel, whether the IJ was still on the bench, or what, if a n y , efforts were made to contact the IJ. Thus, the BIA concluded that Guillen h a d failed to demonstrate that her late appearance should be excused. For the first time in her petition for review, Guillen contends that upon h e r arrival at the courthouse, she informed immigration court personnel that she h a d understood the IJ to say that the hearing was scheduled for 1:30 p.m, rather t h a n 9:00 a.m. An immigration court employee advised Guillen that the IJ was s t ill available and asked that she wait a moment. When the immigration court e m p lo y e e returned, she advised Guillen to file a motion to reopen. Because r e v ie w is limited to the administrative record, this court may not consider facts r a is e d for the first time on appeal. Miranda-Lores v. INS, 17 F.3d 84, 85 (5th C ir . 1994). Further, although Guillen arrived at the courthouse during business h o u r s and had diligently appeared at all prior hearings, she arrived four and o n e -h a lf hours late and waited 77 days to file a motion to reopen. Therefore, the B I A did not abuse its discretion in treating Guillen's late arrival as a failure to a p p e a r . Cf. Alarcon-Chavez v. Gonzales, 403 F.3d 343, 345-46 (5th Cir. 2005) (c o n c lu d in g that it was legal error, and therefore an abuse of discretion, to hold t h a t the petitioner's 20-minute tardiness constituted a failure to appear where h e had been on time to all prior hearings, made every effort to get the IJ to r e s u m e the hearing, and upon learning that the IJ steadfastly refused to conduct t h e hearing, filed a motion to reopen five days later). 2

Case: 09-60910

Document: 00511250827 Page: 3 No. 09-60910

Date Filed: 10/01/2010

L ik e w is e , the BIA did not abuse its discretion in concluding that Guillen fa ile d to demonstrate exceptional circumstances for her failure to appear. Although Guillen contends that her attorney mistakenly informed her that the h e a r in g was scheduled for 1:30 p.m, counsel did not execute an affidavit in s u p p o r t of Guillen's motion to reopen and counsel's statements in the motion and s u b s e q u e n t briefs are not evidence. See INS v. Phinpathya, 464 U.S. 183, 188 n .6 (1984). Further, the record is silent as to whether or when counsel arrived a t the courthouse and what steps, if any, she took upon her arrival. While this c o u r t has held that erroneous advice from counsel can constitute exceptional c ir c u m s t a n c e s warranting rescission of an in absentia removal order, GalvezV e r g a r a v. Gonzales, 484 F.3d 798, 801-02 (5th Cir. 2007), Guillen neither a lle g e d ineffective assistance of counsel nor attempted to comply with the r e q u ir e m e n t s set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). Therefore, she has not shown that the BIA's decision was capricious, racially in v id io u s , without foundation in the evidence, or otherwise so irrational that it w a s arbitrary. See Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006). F in a lly , Guillen contends that the denial of her motion to reopen was u n c o n s c io n a b le and a violation of her due process rights because she is eligible fo r cancellation of removal. As previously stated, Guillen has abandoned any c h a lle n g e to the BIA's determination that she received the required statutory n o t i c e . Further, the denial of a motion to reopen cannot violate an alien's due p r o c e s s rights because the relief sought in such a motion is discretionary in n a t u r e . Gomez-Palacios v. Holder, 560 F.3d 354, 361 n.2 (5th Cir. 2009); Assaad v . Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004). Therefore, Guillen's due process c la im is without merit. A c c o r d in g ly , Guillen's petition for review is DENIED.

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