Maria Gonzalez-Martinez v. Eric Holder, Jr.

Filing

UNPUBLISHED OPINION FILED. [14-60600 Affirmed] Judge: WED , Judge: EBC , Judge: GJC. Mandate pull date is 07/09/2015; denying motion to appoint counsel filed by Petitioner Ms. Maria Graciela Gonzalez-Martinez [7717190-2] [14-60600]

Case: 14-60600

Document: 00513046318

Page: 1

Date Filed: 05/18/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-60600
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
MARIA GRACIELA GONZALEZ-MARTINEZ,
Petitioner

May 18, 2015
Lyle W. Cayce
Clerk

v.
LORETTA LYNCH, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A091 245 803
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Maria Graciela Gonzalez-Martinez, a native and citizen of El Salvador,
petitions for review of the Board of Immigration Appeals (BIA) decision
denying her motion for reconsideration of its denial of her first motion to
reopen her immigration proceeding and denying her second motion to reopen
her immigration proceeding. We have jurisdiction to review the BIA’s denial
of Gonzalez-Martinez’s motions to reconsider and reopen, see Nolos v. Holder,

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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611 F.3d 279, 281 (5th Cir. 2010), and we review the denial of the motions
“under a highly deferential abuse-of-discretion standard.” Zhao v. Gonzales,
404 F.3d 295, 303 (5th Cir. 2005).
Although Gonzalez-Martinez argues, as she did in her motion for
reconsideration, that her counsel was ineffective in connection with her first
motion to reopen, she does not address the BIA’s determination that her
ineffective assistance of counsel claim failed to comply with the requirements
of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), overruled in part by Matter
of Compean, 24 I. & N. Dec. 710 (BIA 2009). She has thus abandoned any
challenge to the procedural basis for the denial of her motion to reconsider. See
Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
Two notices of Gonzalez-Martinez’s January 1993 deportation hearing
were sent to the Fair Oaks, Houston, Texas, address that was reported to the
Immigration and Naturalization Service (INS) in December 1992. Because
Gonzalez-Martinez failed to appear for the deportation hearing, she was
ordered deported in absentia.
Gonzalez-Martinez argued in her second motion to reopen that she never
received notice of her hearing; that her address in 1992 was 2008 Dismuke
Street, Houston, Texas; and that, even if she had received notice of her hearing,
exceptional circumstances warranted reopening her case because she was, at
the time of the hearing, in the hospital. The record supports the BIA’s finding,
however, that Gonzalez-Martinez was personally served with an Order to
Show Cause (OSC) and that, when she signed the OSC, it reflected either the
INS detention facility or the Fair Oaks address as her current address. If, after
signing the OSC, Gonzalez-Martinez’s address changed, she had the
responsibility of notifying the immigration court of the change. See LopezDubon v. Holder, 609 F.3d 642, 647 (5th Cir. 2010).

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Under our precedent, the hearing notice requirement was satisfied. See
id.; see also 8 U.S.C. § 1252b (West 1993) (repealed Sept. 30, 1996); OjedaCalderon v. Holder, 726 F.3d 669, 673 (5th Cir. 2013) (“Because Ojeda’s
immigration proceedings were initiated prior to the 1996 amendments to the
INA, we must apply the notice requirements set forth in former INA § 242B.”).
Moreover, because Gonzalez-Martinez’s motion to reopen was filed more than
180 days following the issuance of her deportation order, her motion to reopen
due to exceptional circumstances was untimely. See § 1252b(c)(3) (West 1993)
(repealed).
As the BIA did not abuse its discretion in denying Gonzalez-Martinez’s
motions to reconsider and reopen, her petition for review is DENIED. See
Zhao, 404 F.3d at 303. Gonzalez-Martinez’s motion for the appointment of
counsel is also DENIED because this case does not present the exceptional
circumstances required for such an appointment. See Ulmer v. Chancellor, 691
F.2d 209, 212 (5th Cir. 1982).

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