Lui Li v. Eric Holder, Jr.

Filing

UNPUBLISHED OPINION FILED. [09-60960 Dismissed in part & Denied in part] Judge: PEH , Judge: JES , Judge: CH Mandate pull date is 01/13/2011 [09-60960]

Lui Li v. Eric Holder,Case: 09-60960 Jr.

Document: 00511300774 Page: 1 Date Filed: 11/22/2010

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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 . 09-60960 S u m m a r y Calendar November 22, 2010 Lyle W. Cayce Clerk

L U I LI, 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. A098 556 824

B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* L u i Li, who a native and citizen of the People's Republic of China, petitions fo r review of an order of the Board of Immigration Appeals (BIA) affirming the im m ig r a t io n judge's (IJ) order denying her motion to reopen removal p r o c e e d in g s . This court reviews the denial of a motion to reopen "under a highly d e fe r e n t ia l abuse-of-discretion standard." Maknojiya v. Gonzales, 432 F.3d 588, 5 8 9 (5th Cir. 2005) (internal quotation marks and citation omitted). Factual

fin d in g s are reviewed "under the substantial-evidence test, meaning that this
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-60960 Document: 00511300774 Page: 2 Date Filed: 11/22/2010 No. 09-60960 c o u r t may not overturn the IJ's factual findings unless the evidence compels a c o n t r a r y conclusion." Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2 0 0 9 ). L i was ordered removed in absentia when she failed to appear for a h e a r in g in April 2005. In August 2008, Li sought to reopen the removal

p r o c e e d in g s on the grounds that she had not received notice of the hearing date a n d time. Thus, she has missed the 180-day deadline for filing a motion to r e o p e n based upon "extraordinary circumstances," but her application based u p o n "non-receipt of notice" is timely. She acknowledges that she had not p r o v id e d a mailing address to authorities, but Li argues that it was due to her c ir c u m s t a n c e s rather than neglect on her part. I n her appeal to this court, Li raises arguments that the Notice to Appear t h a t she received was flawed and legally insufficient and that the IJ should have a p p l i e d a "reasonable cause" standard in ruling on her motion to reopen the r e m o v a l proceedings conducted in absentia. Li did not raise these claims before t h e BIA. Therefore, these claims are unexhausted, this court lacks jurisdiction t o review them, and they must be dismissed. See Townsend v. INS, 799 F.2d 1 7 9 , 181 (5th Cir.1986). T h e IJ's finding that Li failed to provide authorities with a current mailing a d d r e s s after receiving a Notice to Appear explaining the address requirements a n d being orally notified in Chinese of the consequences of failing to appear is s u p p o r t e d by substantial evidence in the record. See Gomez-Palacios, 560 F.3d a t 358. An alien is required to provide the Attorney General, in writing, an a d d r e s s and phone number where she can be contacted respecting the removal p r o c e e d in g s . 8 U.S.C. § 1229(a)(1)(F). Li's failure to provide a current address p r e c lu d e s her from obtaining rescission of the in absentia order of removal. See 8 U.S.C. § 1229a(b)(5)(C)(ii); Gomez-Palacios, 560 F.3d at 360-61. Li did not s h o w that the BIA abused its discretion in affirming the IJ's denial of the

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Case: 09-60960 Document: 00511300774 Page: 3 Date Filed: 11/22/2010 No. 09-60960 m o t io n to reopen the removal proceedings. See Maknojiya, 432 F.3d at 589. The p e t it io n for review is DISMISSED in part and DENIED as to the remainder.

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