Gilma Navarro-Terrero, et al v. Eric Holder, Jr.

Filing

UNPUBLISHED OPINION FILED. [13-60534 Affirmed ] Judge: TMR , Judge: EHJ , Judge: ECP Mandate pull date is 08/14/2014 [13-60534]

Case: 13-60534

Document: 00512673338

Page: 1

Date Filed: 06/23/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

United States Court of Appeals
Fifth Circuit

No. 13-60534
Summary Calendar

FILED
June 23, 2014
Lyle W. Cayce
Clerk

GILMA YOLANDA NAVARRO-TERRERO; GILMA YANELY MARTINEZNAVARRO,
Petitioners
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA Nos. A099 477 571; A099 477 573
Before REAVLEY, JONES and PRADO, Circuit Judges.
PER CURIAM: *
Gilma Yolanda Navarro-Terrero (Navarro) and her daughter, Gilma
Yanely Martinez-Navarro (Martinez), natives and citizens of Honduras,
petition for review of the denial of their applications to reopen proceedings.
Generally, this Court has authority to review only the decision of the Board of
Immigration Appeals (BIA), but we will consider the decision of the

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*

Case: 13-60534

Document: 00512673338

Page: 2

Date Filed: 06/23/2014

No. 13-60534
immigration judge (IJ) if that decision influenced the BIA’s determination.
Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007). Because the BIA agreed
with the IJ’s findings and conclusions, the IJ’s findings are reviewable. See Efe
v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002).
Petitioners argue that the IJ and the BIA erred in denying their Motion
to Reopen due to a lack of notice. Petitioners further contend that the evidence
in the record presents a factual discrepancy as to whether Petitioners failed to
provide an address to the Department of Homeland Security (DHS) and is
therefore subject to the substantial evidence test. Findings of fact are reviewed
for substantial evidence. Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009).
We may not reverse factual findings unless “the evidence was so compelling
that no reasonable factfinder could conclude against it.” Id. at 537. While the
record reflects affidavits from Petitioner Navarro and Petitioner’s Aunt, Olga
Mendez, attesting that Petitioners provided an address and phone number to
a DHS officer who subsequently called and confirmed the address with Olga
Mendez, this evidence is not compelling enough to conclude against the Notices
to Appear (NTAs) signed by Petitioner Navarro and the Forms I-213.

The

record reflects that such forms were read to Petitioners in Spanish and (1)
indicated that a U.S. address must be provided in writing, and (2) that
Petitioners “failed to provide a U.S. address.”
Accordingly, this Court holds that the BIA correctly concluded that the
NTAs, signed by Petitioner Navarro, and the Forms I-213 were properly
authenticated evidence that Petitioners did not provide a valid U.S. address to
DHS. As such, the BIA was not obligated to send Petitioners notice of the
hearing. This Court further holds that the BIA did not abuse its discretion in
upholding the IJ’s denial of reopening the proceedings due to a lack of notice
and rescission of in absentia removal.

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Case: 13-60534

Document: 00512673338

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No. 13-60534
Lastly, with regard to Petitioners’ request to reopen the proceedings
based on asylum outside the legal time limit, the BIA correctly upheld the IJ’s
determination that Petitioners’ motion to reopen had to be based on “changed
country conditions.” This Court does not have the jurisdiction to review this
matter according to 8 U.S.C. § 1158(a)(3) which states in pertinent part “No
court shall have jurisdiction to review any determination of the Attorney
General under paragraph (2)” (which refers to applying for asylum outside the
time limit based on changed conditions).
The petition for review is DENIED.

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