Case: 19-60885     Document: 00515528228         Page: 1     Date Filed: 08/14/2020




            United States Court of Appeals
                 for the Fifth Circuit                         United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
                                                                August 14, 2020
                                No. 19-60885                     Lyle W. Cayce
                              Summary Calendar                        Clerk


 Delita Deysi Melendez De Arriola; Nancy Jacqueline
 Arriola-Melendez,

                                                                     Petitioners,

                                     versus

 William P. Barr, U. S. Attorney General,

                                                                    Respondent.


                    Petition for Review of an Order of the
                        Board of Immigration Appeals
                            BIA No. A071 777 729
                            BIA No. A071 777 731


 Before Clement, Higginson, and Engelhardt, Circuit Judge.
 Per Curiam:*
        Delita Deysi Melendez de Arriola and her daughter, Nancy Jacqueline
 Arriola-Melendez, petition for review of the Board of Immigration Appeals’



        *
          Pursuant to 5TH CIRCUIT RULE 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 opinion should not be published and is not precedent except under the limited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 CIRCUIT RULE 47.5.4.
Case: 19-60885        Document: 00515528228         Page: 2     Date Filed: 08/14/2020




                                   No. 19-60885


 (BIA) order denying their second motions to reopen and rescind their 1991
 in absentia removal orders. In their motions to reopen and rescind,
 Petitioners asserted that they had not received notice of their removal
 proceedings. We review the BIA’s decision under a deferential abuse of
 discretion standard, overturning only if it was “capricious, without
 foundation in the evidence, or otherwise so irrational that it is arbitrary rather
 than the result of any perceptible rational approach.” Hernandez-Castillo v.
 Sessions, 875 F.3d 199, 203–04 (5th Cir. 2017) (internal quotation marks and
 citation omitted).
        Petitioners contend that they presented evidence that the INS
 repeatedly mailed documents to them that did not include their apartment
 number, making it impossible to deliver the documents. Petitioners assert
 that they did not receive the immigration court’s notice of hearing and that it
 is unreasonable to assume that the mailings could be delivered to them
 without a proper apartment number.
        In 2017, in an order denying Petitioners’ first motions to reopen, the
 immigration judge (IJ) found that the August 19, 1991, order denying their
 motions to change venue and setting their hearing for September 4, 1991,
 constituted proper notice of their hearing, that Petitioners had failed to rebut
 the presumption that the notices of hearing were delivered to them, and that
 their assertions that they did not receive notices were not credible. The IJ
 concluded that Petitioners had failed to show that they did not receive notice
 of their hearing or “reasonable cause” for their failure to appear. On appeal,
 the BIA stated that Petitioners had actual notice of their deportation
 proceedings as shown by their motion to change venue. Further, Petitioners’
 decision to wait nearly 25 years before reinitiating their deportation
 proceedings demonstrated a lack of diligence, which undermined their
 claimed lack of notice of the September 4, 1991, hearing and militated against
 exercising discretion to reopen the deportation proceedings. Although



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Case: 19-60885       Document: 00515528228          Page: 3   Date Filed: 08/14/2020




                                     No. 19-60885


 Petitioners sought review of the BIA’s 2017 decisions, we dismissed their
 petition for review for failure to file a brief.
        In 2019, the BIA denied their second motions to reopen, noting that
 their motions to reopen relied on the same or substantially similar arguments
 and evidence which had already been “considered and rejected” by the IJ
 and the BIA in 2017. The BIA explained that their updated affidavits and
 limited additional documents were unpersuasive and did not rebut or address
 the reasons their original motions to reopen were denied.
        On appeal, Petitioners do not address the BIA’s reasoning or make
 any attempt to explain what material evidence they have presented that was
 not available when their first motions to reopen were filed. Further,
 Petitioners do not identify any evidence that impacts the IJ’s original adverse
 credibility finding. Petitioners have not demonstrated that the BIA’s denial
 of their second motions to reopen constituted an abuse of discretion. Id. at
 203. Accordingly, the petition for review is DENIED in part.
        Petitioners have also invoked the BIA’s regulatory power to sua sponte
 reopen proceedings. The BIA denied their request to reopen the proceedings
 sua sponte, concluding that the motions to reopen and evidence did not
 present an exceptional situation which would warrant such a decision. We
 lack jurisdiction to review the BIA’s decision not to exercise its discretion to
 reopen proceedings sua sponte. See id. at 206–07 & n.3. The petition is
 therefore DISMISSED in part. See id. at 209.
        DISMISSED IN PART AND DENIED IN PART.




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