          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                   FILED
                                                               December 11, 2008
                                No. 08-60098
                              Summary Calendar                Charles R. Fulbruge III
                                                                      Clerk

JOSE WILDER ABANTO-ARIAS

                                           Petitioner

v.

MICHAEL B MUKASEY, U S ATTORNEY GENERAL

                                           Respondent


                     Petition for Review of an Order of the
                        Board of Immigration Appeals
                             BIA No. A29 769 684


Before REAVLEY, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
      Jose Wilder Abanto-Arias, a native and citizen of Peru, petitions for review
of the denial of his motion to reopen, in which he argued that he was ordered
deported in absentia and without notice of the hearing at which his deportation
was ordered.    We previously granted the respondent’s motion to remand
Abanto’s case to the Board of Immigration Appeals (BIA) for determination
whether Abanto was represented by Attorney Louis Alvarez when Alvarez
signed a stipulation for a voluntary departure on June 15, 1989. The BIA in

      *
      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should not be published and is not precedent except under the limited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.
                                 No. 08-60098

turn remanded the case to an immigration judge (IJ) for determination whether
Alvarez represented Abanto.
      Abanto contends that the BIA erred by rejecting his motion to reopen
based on lack of notice as time barred, as there is no time bar or numerical
limitation on motions to reopen based on lack of notice. He asserts that the IJ
and BIA were under the incorrect impression that he sought reopening based
solely on the availability of an adjustment of status because he had married an
American citizen, and not that he sought reopening based on lack of notice. He
argues that the IJ and BIA incorrectly found him to be noncredible, and
contends that his deportation order should be rescinded and his case reopened
so that he can seek adjustment of status. He further argues that he was ordered
deported in absentia because he did not have notice of, and was not present at,
the June 15, 1989, proceeding at which voluntary departure was granted.
      “This court reviews the BIA’s denial of a motion to reopen for abuse of
discretion.” Mai v. Gonzales, 473 F.3d 162, 164 (5th Cir. 2006). Because the IJ’s
decision affected the BIA’s finding that Alvarez represented Abanto, we review
the decisions of both the BIA and the IJ. See Mikhael v. INS, 115 F.3d 299, 302
(5th Cir. 1997).
      On a petition for review of a BIA decision, this court reviews factual
findings for substantial evidence and questions of law de novo. Lopez-Gomez v.
Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001). The substantial-evidence standard
requires only that the BIA’s conclusion be based on the evidence presented and
that the decision is substantially reasonable. Carbajal-Gonzalez v. INS, 78 F.3d
194, 197 (5th Cir. 1996). This court will not overturn a BIA factual finding
unless the evidence compels a contrary conclusion. Efe v. Ashcroft, 293 F.3d 899,
905 (5th Cir. 2002).
      The IJ has the duty to make credibility determinations concerning
witnesses. Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994). This court gives great
deference to a factfinder’s decisions concerning an alien’s credibility. Efe, 293

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                                  No. 08-60098

F.3d at 905. This court does not substitute its judgment for that of the BIA or
IJ with respect to witness credibility or ultimate factual findings based on
credibility determinations. Id. When an IJ's credibility determination is based
on “a reasonable interpretation of the record and therefore supported by
substantial evidence,” it will be upheld. Chun, 40 F.3d at 79. The IJ’s credibility
determination may not be overturned unless the record compels it. Id.
      An alien who is ordered removed in absentia, but who is able to
demonstrate that he did not receive notice of the removal proceeding, may file
a motion to reopen, seeking rescission of the order. 8 U.S.C. § 1229a(b)(5)(C)(ii).
There is no limitations period on such a motion. Id. A deportation order entered
by agreement and without a hearing does not qualify as a proceeding in
absentia. See Qoku v. Gonzales, 156 F. App’x 703, 706 (5th Cir. 2005). Thus, if
Alvarez represented Abanto and acted with Abanto’s consent, then there was no
order entered in absentia.
      The IJ’s finding that Alvarez represented Abanto as to the voluntary
departure stipulation agreement is supported by substantial evidence in the
record. See Carbajal-Gonzalez, 78 F.3d at 197. Alvarez and Attorney Gregory
Ball, who signed the stipulation for voluntary departure on behalf of the former
Immigration and Naturalization Service, testified as to how they and the
immigration court proceeded with such stipulations in 1989. Moreover, the
evidence does not compel overturning the IJ’s determination that Abanto was
not credible. See Chun, 40 F.3d at 79. On the IJ’s findings, because Abanto was
represented by counsel and was granted voluntary departure pursuant to a
stipulation agreement, he was not ordered deported in absentia, see Qoku, 156
F. App’x at 706, and was not eligible for reopening pursuant to
§ 1229a(b)(5)(C)(ii).
      PETITION DENIED.




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