     Case: 14-60193      Document: 00512973121         Page: 1    Date Filed: 03/18/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-60193
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          March 18, 2015
QUN CHEN,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 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. A205-908-582


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Qun Chen, a native and citizen of China, seeks review of the February
26, 2014 decision rendered by the Board of Immigration Appeals (BIA), in
which the BIA denied Chen’s motion for reconsideration and motion to reopen.
Earlier, in its decision of December 31, 2013, the BIA dismissed Chen’s appeal
from the immigration judge’s (IJ) denial of relief and denied his motion to
remand based on alleged ineffective assistance of counsel. Chen did not file a


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                 No. 14-60193

petition for review within 30 days of the BIA’s December 31, 2013 decision.
Accordingly, we do not have jurisdiction to review the earlier BIA decision.
See 8 U.S.C. § 1252(b)(1); see also Stone v. INS, U.S. 386, 405 (1995); Kane v.
Holder, 581 F.3d 231, 237 n.14 (5th Cir. 2009).
      We do, however, have jurisdiction to review the BIA’s February 26, 2014
decision denying Chen’s motion for reconsideration and motion to reopen. In
reviewing the BIA’s denial of a motion to reopen, this court generally applies a
“highly deferential abuse-of-discretion standard.” Zhao v. Gonzales, 404 F.3d
295, 303 (5th Cir. 2005); see also Rodriguez-Manzano v. Holder, 666 F.3d 948,
952 (5th Cir. 2012). We apply the same standard when reviewing the BIA’s
denial of a motion for reconsideration. Zhao, 404 F.3d at 303. This court will
affirm the BIA’s decision “so long as it is not capricious, racially invidious,
utterly without foundation in the evidence, or otherwise so irrational that it is
arbitrary rather than the result of any perceptible rational approach.” Zhao,
404 F.3d at 304 (internal quotation marks and citation omitted).
      In denying Chen’s motion to reopen, the BIA found that Chen had failed
to fully comply with the procedural requirements set forth in Matter of Lozada,
19 I. & N. Dec. 637 (BIA 1998), overruled in part by Matter of Compean, 24 I.
& N. Dec. 710 (BIA 2009). In his petition for review, Chen does not address
the BIA’s determination that he failed to comply with the requirements of
Lozada. He has thus abandoned any challenge to the procedural basis for the
denial of his motion to reopen based on ineffective assistance of counsel. See
Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003). We need not address
Chen’s challenge to the BIA’s alternative basis for rejecting his claim—his
failure to demonstrate substantial prejudice. See Ramos-Bonilla v. Mukasey,
543 F.3d 216, 220 (5th Cir. 2008); Huerta-Galvan v. Holder, 531 F. App’x 447,




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                                 No. 14-60193

448 (5th Cir. 2013). Accordingly, Chen has not shown that the BIA abused its
discretion on this basis.
      We now turn to the denial of Chen’s motion for reconsideration. In
arguing that the BIA abused its discretion, Chen contends first that the BIA
erroneously relied on Ogbemudia v. INS, 988 F.2d 595 (5th Cir. 1993). His
reference to Ogbemudia is inapposite, as the BIA did not rely on it in its
February 26, 2014 decision.     As we noted earlier, we are precluded from
considering the BIA’s decision of December 31, 2013. Chen later challenges,
in some detail, the substance of the IJ’s adverse credibility determination in
order to argue that the BIA abused its discretion in denying his motion for
reconsideration. However, because Chen did not challenge the IJ’s credibility
determination in his motion for reconsideration or on appeal before the BIA,
we lack jurisdiction to consider such arguments in the instant petition for
review. See § 1252(d)(1); see also Wang v. Ashcroft, 260 F.3d 48, 452-53 (5th
Cir. 2001).
      In light of the foregoing, the petition for review is DENIED, in part, and
DISMISSED, in part.




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