     Case: 11-60729     Document: 00512003488         Page: 1     Date Filed: 09/28/2012




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

                                                                            FILED
                                                                        September 28, 2012
                                     No. 11-60729
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

SERVANDO ZAVALA-RIOS,

                                                  Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A088 608 006


Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
        Servando Zavala-Rios, a Mexican citizen who has been removed to Mexico,
petitions for review of the Board of Immigration Appeals’ (BIA) order denying
his motion to reconsider the dismissal of his appeal from the Immigration
Judge’s (IJ) denial of his cancellation-of-removal application. He contends: (1)
the BIA erred in finding his motion for reconsideration was withdrawn pursuant
to the departure bar of 8 C.F.R. § 1003.2(d); (2) the BIA failed to consider claims
of constitutional-rights violations pursuant to his arrest by immigration officials;

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-60729

and (3) he submitted affidavits from his parents establishing his entry to the
United States in 1994, and that his removal would result in hardship to his
parents.
      A motion to reconsider must identify some error of fact or law in the prior
BIA decision; a motion to reopen alleges new facts and is supported by evidence,
such as affidavits. See 8 C.F.R. § 1003.2(b)(1), (c)(1). Because Zavala submitted
new evidence in support of his motion, it is construed as a motion to reconsider
and to reopen. See Zhao v. Gonzales, 404 F.3d 295, 301 (5th Cir. 2005). Both
types of motions are disfavored, and their denial is reviewed for abuse of
discretion. See Lara v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000); Zhao, 404
F.3d at 303. In that regard, the BIA’s denial will stand “so long as it is not
capricious, racially invidious, utterly without foundation in the evidence, or
otherwise so irrational that it is arbitrary rather than the result of any
perceptible rational approach”. Zhao, 404 F.3d at 304 (internal quotation marks
and citation omitted).
      Because, as discussed infra, the BIA properly denied Zavala’s motion on
the merits, whether his involuntary removal constituted a withdrawal of his
motion pursuant to 8 C.F.R. § 1003.2(d) need not be considered.
      In his motion for reconsideration, Zavala claimed, for the first time, a
constitutional rights violation pursuant to his arrest. His sole supporting
evidence is a single sentence in his parents’ affidavit, which claims a Fifth
Amendment violation when officers searched Zavala’s home. Even if he had
presented more evidence, the BIA will not grant a motion to reopen unless the
evidence offered is material and could not have been previously discovered or
presented at a prior hearing. 8 C.F.R. § 1003.2(c)(1). Because there is no
indication that such evidence was previously unavailable or could not have been
presented earlier, the denial of his motion was not an abuse of discretion. See
Ogbemudia v. INS, 988 F.2d 595, 599-600 (5th Cir. 1993); Zhao, 404 F.3d at 303-
04.

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                                 No. 11-60729

      The IJ and BIA also found that Zavala had not established eligibility for
cancellation of removal because he had not shown: (1) ten years of continuous
presence in the United States; and (2) “exceptional and extremely unusual
hardship” to qualifying relatives if he was removed. 8 U.S.C. § 1229b(b)(1). As
part of his motion to reconsider, in support of his claim of such continuous
presence, Zavala submitted an affidavit from his parents that he had first
entered the United States in 1994. However, as we noted above, the BIA will not
grant a motion to reopen unless the evidence offered is material and could not
have been previously discovered or presented at a prior hearing. 8 C.F.R.
§ 1003.2(c)(1). Because Zavala could have previously presented evidence of his
1994 entry, he cannot show the BIA’s denial of his motion was an abuse of
discretion. 8 C.F.R. § 1003.2(c)(1); Ogbemudia, 988 F.2d at 599-600; Zhao, 404
F.3d at 303-04.
      Finally, the BIA denied Zavala’s motion because he provided no new
evidence to show his removal would cause his parents exceptional or unusual
hardship. Here, Zavala asserts incorrectly that the IJ found his removal would
cause such hardship; the IJ stated expressly that Zavala failed to carry his
burden in this regard.    Therefore, he has not shown the BIA abused its
discretion in its denial of his motion. Zhao, 404 F.3d at 303-04.
      DENIED.




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