Jacinto Loja-Lema v. Eric Holder, Jr.

Filing

UNPUBLISHED OPINION FILED. [09-60933 Affirmed ] Judge: CDK , Judge: FPB , Judge: JWE Mandate pull date is 02/07/2011 [09-60933]

Jacinto Loja-Lema v. Erice: 09-60933 Cas Holder, Jr.

Document: 00511324895 Page: 1 Date Filed: 12/17/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-60933 S u m m a r y Calendar December 17, 2010 Lyle W. Cayce Clerk

J A C IN T O LOJA-LEMA, 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. A075 294 114

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* J a c in t o Loja-Lema (Loja) petitions this court for review of the decision of t h e Board of Immigration Appeals (BIA) dismissing his appeal of the immigration judge's (IJ's) order denying his motion to reopen deportation p r o c e e d in g s that were held in absentia in 1997. We review the denial of a m o t io n to reopen under a highly deferential abuse of discretion standard. Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009). Questions of law a r e reviewed de novo and deference is accorded to the BIA's interpretation of
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-60933 Document: 00511324895 Page: 2 Date Filed: 12/17/2010 No. 09-60933 im m ig r a t io n statutes unless the record reveals compelling evidence that the B I A 's interpretation is incorrect. Id. Factual findings are reviewed under a s u b s t a n t ia l-e v id e n c e test, which means that this court may not overturn them u n le s s the evidence compels a contrary conclusion. Id. The underlying decision o f the IJ is reviewed only if it influences the decision of the BIA. Id. L o ja is correct in his assertion that motion to rescind a deportation order is s u e d in absentia may be filed at any time if the alien establishes that he did n o t receive notice of the hearing in accordance with statutory notice r e q u ir e m e n t s . See id. However, if the alien has failed to provide a current m a ilin g address, the Government need not establish that written notice was p r o v id e d in order to obtain the in absentia order. Id. Although he raises a v a r ie t y of claims regarding the notice issue, Loja has not shown error in the d e t e r m in a t io n that he did not provide immigration officials with a mailing a d d r e s s where notice of the hearing could be mailed. To the extent that the IJ's fo r m order mistakenly suggested that notice of the hearing was mailed to Loja, t h e BIA noted this discrepancy and clearly found that Loja had not been served b y mail because he had never submitted his address to the immigration court. The discrepancy thus did not influence the decision of the BIA. L o ja also argues that the in absentia order of removal violated due process. We rejected this argument in Gomez-Palacios, 560 F.3d at 361 n.2, based on the c o n c lu s io n that there is no liberty interest at stake in a motion to reopen due to t h e discretionary nature of reopening relief. Moreover, Loja has failed to show t h a t he was denied a procedural safeguard to which he was entitled. L o ja also presents several new arguments concerning the BIA's d e t e r m in a t io n that he failed to provide a valid contact address, and he continues in his assertions that he was in telephone contact with the court clerk. Finally, h e argues for the first time on appeal that the Government impliedly accepted h is residence in the United States by accepting his taxes for over eight years.

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Case: 09-60933 Document: 00511324895 Page: 3 Date Filed: 12/17/2010 No. 09-60933 T h e BIA found that Loja's assertions regarding the alleged telephone calls w e r e implausible and Loja has not shown that the evidence compels a contrary c o n c lu s io n . Additionally, we lack jurisdiction to consider the arguments that h a v e been raised for the first time on appeal. See Roy v. Ashcroft, 389 F.3d 132, 1 3 7 (5th Cir. 2004). L o ja has not shown that the BIA abused its discretion in denying his m o t io n to reopen his deportation proceedings. Accordingly, his petition for r e v ie w is DENIED.

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