     Case: 15-60556      Document: 00513684899         Page: 1    Date Filed: 09/20/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 15-60556                                FILED
                                  Summary Calendar                      September 20, 2016
                                                                           Lyle W. Cayce
                                                                                Clerk
WALTER ERNESTO RAYMUNDO-LIMA,

                                                 Petitioner

v.

LORETTA LYNCH, U. S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A077 260 082


Before DAVIS, BENAVIDES, and OWEN, Circuit Judges.
PER CURIAM: *
       Walter Ernesto Raymundo-Lima, a native citizen of El Salvador,
petitions this court to review the denial of his motion to reopen in absentia
removal proceedings. Raymundo-Lima argues that the Board of Immigration
Appeals (BIA): (1) failed to consider his argument for equitable tolling,
(2) erred in determining that he had failed to demonstrate changed conditions
in El Salvador, (3) erred in concluding that reopening was not warranted based


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-60556

on lack of notice of the removal hearing, and (4) abused its discretion by
declining to reopen the proceedings sua sponte.
      We conclude that the BIA did not abuse its discretion in denying
Raymundo-Lima’s motion to reopen. See Barrios-Cantarero v. Holder, 772
F.3d 1019, 1021 (5th Cir. 2014). The BIA expressly addressed Raymundo-
Lima’s argument urging for equitable tolling of the 180-day limitations period
for filing a motion to reopen.     It agreed with the immigration judge that
Raymundo-Lima        had   not   met   his   burden   of    showing   “exceptional
circumstances” that would allow for tolling of the deadline. See United States
v. English, 400 F.3d 273, 275 (5th Cir. 2005) (recognizing that equitable tolling
should only apply in “rare and exceptional circumstances”). To the extent that
Raymundo-Lima argues that the BIA failed to follow Mata v. Lynch, 135 S. Ct.
2150 (2015), that argument fails because the Supreme Court did not express
an opinion on whether immigration statutes permit equitable tolling of the
limitations period for filing a motion to reopen. 135 S. Ct. at 2156 n.3.
      Raymundo-Lima also failed to meet his burden of proving changed
country conditions. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).
As the BIA noted, he failed to present “any documentary evidence to establish
that conditions in El Salvador ha[d] changed since his scheduled [removal]
hearing.” All Raymundo-Lima offered were counsel’s statements, which were
not evidence. With respect to his contention that reopening is warranted based
on lack of notice of the removal hearing, Raymundo-Lima refused to give an
address to federal agents at the time he was served with his Notice to Appear,
and he conceded that he never provided a mailing address to the immigration
court. Under these circumstances, written notice of the removal proceedings
is not required, and Raymundo-Lima’s lack of notice is not a basis for reopening
the removal proceedings. See 8 U.S.C. § 1229a(b)(5)(B). Raymundo-Lima’s



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                                  No. 15-60556

suggestion that the lack of a transcript from the in absentia removal
proceedings somehow indicates that no hearing was held is an unexhausted
claim because he failed to raise it before the BIA, and, therefore, it is not
properly before this court. See Goonsuwan v. Ashcroft, 252 F.3d 383, 390 (5th
Cir. 2001).
       To the extent that Raymundo-Lima contends that the BIA’s failure to
exercise its discretion to reopen the removal proceedings sua sponte violated
his right to due process, this court has repeatedly held that “discretionary relief
from removal . . . is not a liberty or property right that requires due process
protection.”     Ahmed v. Gonzales, 447 F.3d 433, 440 (5th Cir. 2006).
Furthermore, this court lacks jurisdiction over the BIA’s decision not to reopen
the removal proceedings sua sponte. Enriquez-Alvarado v. Ashcroft, 371 F.3d
246, 248-50 (5th Cir. 2004).
       Because this court lacks jurisdiction over the BIA’s decision not to reopen
the    removal    proceedings   sua   sponte,     Raymundo-Lima’s      petition   is
DISMISSED, IN PART, on that basis.              The remainder of his petition is
DENIED.




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