Angel Lemus-Herrera v. Eric Holder, Jr.

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UNPUBLISHED OPINION FILED. [10-60420 Affirmed] Judge: JLW , Judge: ECP , Judge: PRO. Mandate pull date is 02/14/2011 [10-60420]

Angel Lemus-Herrera asEric10-60420 Document: 00511331621 Cv. e: Holder, Jr.

Page: 1 Date Filed: 12/23/2010

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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 . 10-60420 S u m m a r y Calendar December 23, 2010 Lyle W. Cayce Clerk

A N G E L GABRIEL LEMUS-HERRERA, P e titio n e r v. E R I C H. HOLDER, JR., U.S. ATTORNEY GENERAL, R esp on d en t.

P e tit io n for Review of an Order of the B o a r d of Immigration Appeals B I A No. A099 533 123

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* A n g e l Gabriel Lemus-Herrera (Lemus), a native and citizen of El Salvador, w a s ordered deported in absentia by an immigration judge (IJ) when Lemus f a ile d to appear at his scheduled hearing in February 2006. Lemus filed a m o t io n to reopen in July 2009, which the IJ denied. The Board of Immigration A p p e a ls (BIA) affirmed the IJ's decision without opinion. Lemus has timely p e t it io n e d for review of the BIA's order.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-60420 Document: 00511331621 Page: 2 Date Filed: 12/23/2010 No. 10-60420 W e review the denial of a motion to reopen "under a highly deferential a b u s e -o f-d is c r e t io n standard." Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2 0 0 5 ). The BIA's decision must be upheld as long as it is not "capricious, racially in v id io u s , utterly without foundation in the evidence, or otherwise so irrational t h a t it is arbitrary rather than the result of any perceptible rational approach." Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006) (internal quotation marks a n d citation omitted). L e m u s contends that the in absentia deportation order was improperly is s u e d because he did not receive notice of his hearing. He asserts that his fa ilu r e to receive the notice of his hearing was due to error on the part of im m ig r a t io n officials or the immigration court. Because Lemus failed to present t h e s e issues to the BIA they are unexhausted, and we lack jurisdiction to c o n s id e r them. See Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004) (per c u r ia m ); Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th Cir. 2001). N o t in g the summary disposition of his appeal, Lemus argues that the BIA d id not sufficiently articulate the reasons for denying relief. The BIA is

p e r m it t e d to affirm, without opinion, a decision of an immigration judge. See 8 C.F.R. § 1003.1(e)(4). We have previously determined that the BIA's summary a ffir m a n c e procedures "do not deprive this court of a basis for judicial review and t h a t the procedures do not violate due process." Soadjede v. Ashcroft, 324 F.3d 8 3 0 , 832-33 (5th Cir. 2003) (per curiam). Lemus has failed to show error. T h e petition for review is DENIED.

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