     Case: 17-60860      Document: 00514789745         Page: 1    Date Filed: 01/10/2019




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

                                    No. 17-60860                             FILED
                                  Summary Calendar                    January 10, 2019
                                                                        Lyle W. Cayce
                                                                             Clerk
MARIA ROMELIA SURIANO-LAINE,

                                                 Petitioner

v.

MATTHEW G. WHITAKER, ACTING U. S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A200 114 927


Before REAVLEY, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Maria Romelia Suriano-Laine petitions for review of the order of the
Board of Immigration Appeals (BIA) denying her appeal from the order of the
immigration judge (IJ) denying her motion to reopen and rescind her in
absentia removal order, in which she asserted that she had not received proper
notice of her removal proceedings. We review the BIA’s decision under a
deferential abuse of discretion standard, overturning only if it was not


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-60860     Document: 00514789745      Page: 2    Date Filed: 01/10/2019


                                  No. 17-60860

“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 (5th Cir. 2017) (internal
quotation marks and citation omitted).
      Suriano-Laine asserts that she is illiterate and therefore the notice to
appear did not provide actual notice of the date and time of her removal
proceeding or of the consequences of failing to appear. She also argues that,
given her illiteracy, she was mentally incompetent and therefore entitled to
“adequate safeguards” pursuant to 8 U.S.C. § 1229a(b)(3). Even if illiteracy
constitutes mental incompetence for purposes of § 1229a(b)(3), the only proof
of illiteracy is counsel’s conclusory assertion, proffered for the first time in the
brief to the BIA challenging the IJ’s denial of the motion to reopen.
      Accepting Suriano-Laine’s uncorroborated assertion that she was
effectively unable to read or write in English, rendering the written notice
insufficient to put her on actual notice, she makes no claim that she was unable
to understand spoken Spanish, the language in which the Border Patrol agent
explained the notice to her. Furthermore, 8 U.S.C. § 1229(a)(1) and (b)(1) do
not require notice in the alien’s native language. Suriano-Laine’s presumptive
understanding of the notice to appear is evidenced by her signature and
fingerprint on the service certificate.      The record further establishes that
Suriano-Laine was advised orally in Spanish that the failure to report for her
immigration hearing might result in her deportation in absentia and that
Suriano-Laine stated that she understood what was explained to her.
      Suriano-Laine has not demonstrated that the denial of her motion to
reopen constituted an abuse of discretion. See Hernandez-Castillo, 875 F.3d at
203. Accordingly, the petition for review is DENIED.




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