Willian Pineda-Herrera v. Loretta Lynch


UNPUBLISHED OPINION FILED. [16-60460 Affirmed ] Judge: EGJ , Judge: JES , Judge: JEG Mandate pull date is 09/07/2017 [16-60460]

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Case: 16-60460 Document: 00514074789 Page: 1 Date Filed: 07/17/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-60460 Summary Calendar United States Court of Appeals Fifth Circuit FILED July 17, 2017 Lyle W. Cayce Clerk WILLIAN PINEDA-HERRERA, Also Known as William Pineda-Herrera, Petitioner, versus JEFFERSON B. SESSIONS, III, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A 200 968 272 Before JOLLY, SMITH, and GRAVES, Circuit Judges. PER CURIAM: * Willian Pineda-Herrera, a native and citizen of Honduras, petitions for 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 16-60460 Document: 00514074789 Page: 2 Date Filed: 07/17/2017 No. 16-60460 review of an order of the Board of Immigration Appeals (“BIA”) dismissing his appeal of an order of an immigration judge (“IJ”) denying his motion to reopen. The BIA rejected Pineda-Herrera’s allegation that he was ordered removed in absentia. Additionally, with respect to Pineda-Herrera’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 sua sponte. We granted the Attorney General’s motion to dismiss the petition for lack of jurisdiction as to review of the BIA’s decision to deny sua sponte reopening, but we denied the Attorney General’s motion to dismiss as to the remainder of the BIA’s order. We review the denial of a motion to reopen “under a highly deferential abuse-of-discretion standard.” Lugo-Resendez v. Lynch, 831 F.3d 337, 340 (5th Cir. 2016) (internal quotations and citation omitted). The BIA “abuses its discretion when it issues a decision that is capricious, irrational, utterly without foundation in the evidence, based on legally erroneous interpretations of statutes or regulations, or based on unexplained departures from regulations or established policies.” Id. Pineda-Herrera fails to address the BIA’s determinations that the removal order was not ordered in abstentia; that the motion to reopen was untimely because it was filed more than 90 days after the order of removal became final; and that Pineda-Herrera failed to show that he exercised the necessary due diligence for equitable tolling of the deadline for filing the motion. See 8 U.S.C. § 1229a(c)(7)(C)(i); Lugo-Resendez, 831 F.3d at 343–44. Those issues are therefore abandoned. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003). Pineda-Herrera’s sole argument is that, based on Matter of BarrientosVivas, 2015 WL 4873228 (BIA June 25, 2015), the BIA should have granted his 2 Case: 16-60460 Document: 00514074789 Page: 3 Date Filed: 07/17/2017 No. 16-60460 motion to reopen. Barrientos-Vivas does not provide, however, that a desire to apply for a provisional waiver is an exception to the requirement of timely filing a motion to reopen; in fact, Barrientos-Vivas explicitly noted that the motion to reopen there was timely. See id. at *1; see also § 1229a(c)(7)(C). Accordingly, Pineda-Herrera has failed to show that the BIA abused its discretion in denying the motion to reopen, see Lugo-Resendez, 831 F.3d at 340, and the petition for review is DENIED. 3

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