     Case: 17-60734      Document: 00514662898         Page: 1    Date Filed: 10/01/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                      United States Court of Appeals

                                    No. 17-60734
                                                                               Fifth Circuit

                                                                             FILED
                                  Summary Calendar                     October 1, 2018
                                                                        Lyle W. Cayce
DZHAMOL ABUZAROVICH MUKHTAROV,                                               Clerk


                                                 Petitioner

v.

JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A094 653 768


Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       Dzhamol Abuzarovich Mukhtarov, a native and citizen of Uzbekistan,
petitions for review of an order of the Board of Immigration Appeals (BIA)
affirming the denial of his motion to reopen his removal proceedings. He
argues that the Immigration Judge (IJ) erroneously refused to equitably toll
the deadline for his statutory motion to reopen in light of Gomez-Perez v.
Lynch, 829 F.3d 323 (5th Cir. 2016). Mukhtarov also has filed a motion to


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-60734    Document: 00514662898     Page: 2   Date Filed: 10/01/2018


                                 No. 17-60734

remand his case to the BIA in light of Pereira v. Sessions, 138 S. Ct. 2105
(2018).
      Where the BIA affirms an IJ’s decision without opinion, as here, we
review the decision of the IJ. Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir.
2006). We review the denial of a statutory motion to reopen under the “highly
deferential” abuse of discretion standard. Gonzalez-Cantu v. Sessions, 866
F.3d 302, 304-05 (5th Cir. 2017), cert. denied, 138 S. Ct. 677 (2018). Mukhtarov
has not shown any abuse of discretion. He did not support his motion with the
required evidence.    See Gonzalez-Cantu, 866 F.3d at 304-05; 8 U.S.C.
§ 1229a(c)(7)(B) (stating that a motion to reopen “shall be supported by
affidavits or other evidentiary material”). He has not shown that the IJ’s
decision not to equitably toll the deadline was “capricious, without foundation
in the evidence, or otherwise so irrational that it is arbitrary rather than the
result of any perceptible rational approach.” Gonzalez-Cantu, 866 F.3d at 304-
05 (internal citation and quotation marks omitted).
      As for Mukhtarov’s motion to remand in light of Pereira, he failed to
exhaust any basis for the argument. Mukhtarov appears to rely on Pereira to
show that he is now eligible for cancellation of removal for certain permanent
residents under 8 U.S.C. § 1229b(a). However, Mukhtarov never previously
advanced any argument that he should have been deemed eligible for
cancellation of removal. At the time he filed his motion to reopen, there was a
circuit split on the issue resolved in Pereira. See 138 S. Ct. at 2113 & n.4.
Mukhtarov has not “fairly present[ed]” the issue to the BIA. See Omari v.
Holder, 562 F.3d 314, 321 (5th Cir. 2009). Therefore, while we otherwise have
jurisdiction to rule on Mukhtarov’s petition for review, we are devoid of
jurisdiction as to the basis of Mukhtarov’s motion to remand.




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                              No. 17-60734

     Accordingly, we DENY the petition for review in part and DISMISS it in
part. We further DENY the motion to remand.




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