Boris Cortez-Lucero v. Eric Holder, Jr.

Filing

UNPUBLISHED OPINION FILED. [14-60363 Affirmed ] Judge: WED , Judge: EBC , Judge: GJC Mandate pull date is 05/28/2015 [14-60363]

Case: 14-60363

Document: 00512993893

Page: 1

Date Filed: 04/06/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-60363
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
April 6, 2015
Lyle W. Cayce
Clerk

BORIS LEONEL CORTEZ-LUCERO,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A094 788 139
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *

Boris Leonel Cortez-Lucero, a native and citizen of El Salvador, petitions
for review of the decision of the Board of Immigration Appeals (BIA) dismissing
his appeal from the denial of a motion to reopen his in absentia removal
proceedings. Cortez-Lucero argues that the BIA erred in finding that he had
received notice of the removal proceedings, that the lack of notice should result

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-60363

Document: 00512993893

Page: 2

Date Filed: 04/06/2015

No. 14-60363
in equitable tolling or due process protections, and that he submitted sufficient
evidence to support a claim under the Convention Against Torture (CAT).
We review the denial of a motion to reopen under a highly deferential
abuse-of-discretion standard. Barrios-Cantarero v. Holder, 772 F.3d 1019,
1021 (5th Cir. 2014). The BIA’s finding that Cortez-Lucero received notice of
the removal proceedings is supported by substantial evidence: proof of personal
service of the notice to appear that bore Cortez-Lucero’s signature.

The

affidavit that Cortez-Lucero presented years later with his motion to reopen
does not compel a contrary conclusion. See Gomez-Palacios v. Holder, 560 F.3d
354, 358 (5th Cir. 2009); see 8 U.S.C. § 1252(b)(4)(B).

In light of this

determination, we need not address Cortez-Lucero’s equitable tolling and due
process arguments.
Cortez-Lucero also contends that his sworn declaration that he fears
returning to El Salvador was sufficient evidence to support a claim of relief
under the CAT. He concedes, however, that he did not file a CAT application,
and neither he nor his attorney asserted that he sought CAT relief based on
changed country conditions. Both were required. See 8 C.F.R. § 1003.23(b)(1),
(4)(i). This claim thus fails.
The petition for review is DENIED.

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