Marvin Cardona-Najera v. Loretta Lynch

Filing

UNPUBLISHED OPINION FILED. [15-60661 Affirmed in Part and Dismissed in Part for Lack of Jurisdiction] Judge: TMR , Judge: PRO , Judge: JWE Mandate pull date is 07/28/2017 [15-60661]

Case: 15-60661

Document: 00514021481

Page: 1

Date Filed: 06/06/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-60661
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
June 6, 2017
Lyle W. Cayce
Clerk

MARVIN RAMON CARDONA-NAJERA,
Petitioner
v.
JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A074 374 789
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *

Marvin Ramon Cardona-Najera, a native and citizen of Honduras,
petitions for review of the order of the Board of Immigration Appeals (BIA)
dismissing his appeal from the Immigration Judge’s (IJ) order denying his
motion to rescind an in absentia order of removal and to reopen proceedings.
The BIA determined that Cardona-Najera failed to show that he did not receive
notice of the hearings through no fault of his own. Additionally, regarding

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-60661

Document: 00514021481

Page: 2

Date Filed: 06/06/2017

No. 15-60661
Cardona-Najera’s assertion that the proceedings should be reopened to allow
him to seek a provisional waiver of unlawful presence, the BIA determined that
his motion to reopen was untimely and also declined to reopen the proceedings
sua sponte.
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). Motions to reopen immigration proceedings are generally not
favored. Altamirano-Lopez v. Gonzales, 435 F.3d 547, 549-50 (5th Cir. 2006).
In his petition for review, Cardona-Najera contends that the BIA abused
its discretion in denying his motion because he established that he did not
receive notice through no fault of his own. A deportation order entered in
absentia may be rescinded “upon a motion to reopen filed at any time if the
alien demonstrates that the alien did not receive notice in accordance with” the
statutory requirements and the failure to appear was through no fault of the
alien. 8 U.S.C. § 1229a(b)(5)(C)(ii). On a motion to reopen, it is the alien’s
burden to demonstrate that he did not receive notice in accordance with
§ 1229(a) and that the failure to appear was not his fault. § 1229a(b)(5)(C)(ii).
“[W]hen notice is sent by certified mail, there is a strong presumption of
effective service.” Ojeda-Calderon v. Holder, 726 F.3d 669, 673 (5th Cir. 2013).
To overcome that presumption the alien must “present substantial and
probative evidence such as documentary evidence from the Postal Service,
third party affidavits, or other similar evidence demonstrating that there was
improper delivery” or nondelivery. Id. (internal quotation marks and citation
omitted).
The IJ entered an in absentia order after Cardona-Najera failed to
appear at a hearing on April 9, 1997. Prior to that hearing, three notices were
sent to Cardona-Najera via certified mail at the address he provided to the

2

Case: 15-60661

Document: 00514021481

Page: 3

Date Filed: 06/06/2017

No. 15-60661
Immigration Court. Each time the notices were returned as undeliverable.
Cardona-Najera was personally served with an Order to Show Cause informing
him of the consequences of the failure to appear at a later hearing.
The record contained no documentary evidence supporting CardonaNajera’s assertion that he provided an updated address to the Immigration
Court on the correct form.

Though Cardona-Najera provided documents

showing that his Miami address was known to United States Citizen and
Immigration Services, he did not change his address until after the IJ issued
the in absentia order.

Cardona-Najera did not present “substantial and

probative evidence . . . that nondelivery was not due to the [his] failure to
provide an address where he could receive mail.” Maknojiya v. Gonzales, 432
F.3d 588, 589 (5th Cir. 2005) (internal quotation marks and citation omitted).
Accordingly, substantial evidence supports the BIA’s finding that CardonaNajera failed to show that he did not receive notice through no fault of his own.
See Gomez-Palacios, 560 F.3d at 361; § 1229a(b)(5)(C)(ii).
Cardona-Najera also argues that the BIA erroneously stated that he was
not required to rescind the in absentia order to apply for a provisional waiver
of unlawful presence. Regardless whether it was necessary to rescind the in
absentia order, the BIA did not deny the motion to reopen on that ground.
Rather, the BIA determined that a motion to reopen on this ground was subject
to the 90-day time limitation and that Cardona-Najera’s motion was untimely
filed. Cardona-Najera does not challenge the BIA’s determination that his
motion to reopen in order to seek a provisional waiver of unlawful presence
was untimely. Thus, he has abandoned any challenge to any challenge to the
BIA’s determination that his motion was untimely. See Soadjede v. Ashcroft,
324 F.3d 830, 833 (5th Cir. 2003).

3

Case: 15-60661

Document: 00514021481

Page: 4

Date Filed: 06/06/2017

No. 15-60661
Finally, Cardona-Najera asserts that the BIA erred in not exercising its
discretion to reopen proceedings because he made a showing of extraordinary
circumstances. We lack jurisdiction to review whether the BIA should have
exercised its sua sponte authority to reopen the case. See Ramos-Bonilla v.
Mukasey, 543 F.3d 216, 219-20 (5th Cir. 2008). Additionally, Cardona-Najera
has not shown that the BIA violated his due process rights by denying his
motion to reopen the proceedings. See Altamirano-Lopez, 435 F.3d at 550-51.
For the foregoing reasons, Cardona-Najera’s petition for review is
DISMISSED in part for lack of jurisdiction and DENIED in part.

4