Rudy Sanchez v. Eric Holder, Jr.
UNPUBLISHED OPINION FILED. [12-60124 Affirmed ] Judge: PEH , Judge: PRO , Judge: LHS Mandate pull date is 04/18/2013 [12-60124]
Date Filed: 02/25/2013
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
February 25, 2013
Lyle W. Cayce
RUDY ALCIDES SANCHEZ,
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A094 797 740
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
Rudy Alcides Sanchez, a native and citizen of El Salvador, petitions for
review of the decision of the Board of Immigration Appeals (BIA) denying the
motion to reopen his removal proceeding. He filed the motion to reopen more
than four years after the in absentia order of removal was issued.
While Sanchez’s signature appears on the Notice to Appear containing the
time, date, and location of his removal hearing, he denies receiving personal
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
Date Filed: 02/25/2013
service of the notice because he does not recall receiving it. He asks this court
to excuse his forgetfulness because he was nervous and fearful at the time,
having fled violence in El Salvador and having recently crossed the border
between Mexico and the United States.
We review the denial of a motion to reopen under “a highly deferential
abuse-of-discretion standard.” Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th
Cir. 2009). Under that standard, we “must affirm the BIA’s decision as long as
it is not capricious, without foundation in the evidence, or otherwise so irrational
that it is arbitrary rather than the result of any perceptible rational approach.”
Id. The BIA’s conclusion that Sanchez received personal service of the Notice to
Appear was supported by the record, including Sanchez’s own signature on the
Government’s copy of the Notice to Appear. See Gomez-Palacios , 560 F.3d at
358. The BIA thus did not abuse its discretion in denying the motion to reopen
based on Sanchez’s claims of lack of notice.
We also find no abuse of discretion in the determination that the motion
to reopen was not authorized under § 1229a(c)(7)(C)(ii). Sanchez effectively
concedes that his claims for asylum and withholding of removal were not based
on changed country conditions in El Salvador, asserting that it “would be hard
to imagine” that conditions in El Salvador “could get much worse” because the
conditions “are already so deplorable.”
Sanchez’s remaining arguments provide no legal basis for overcoming the
statutory untimeliness of his motion to reopen. See § 1229a(b)(5)(C), (c)(7)(C)(ii).
To the extent he challenges the decision not to reopen the proceeding sua sponte
under 8 C.F.R. § 1003.23(b), we lack jurisdiction to review that decision. See
Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 250 (5th Cir. 2004).
The denial of Sanchez’s motion to reopen was not “capricious, without
foundation in the evidence, or otherwise so irrational that it is arbitrary rather
than the result of any perceptible rational approach.” Gomez-Palacios, 560 F.3d
at 358. The petition for review is DENIED.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?