     Case: 18-60281      Document: 00514897944         Page: 1    Date Filed: 04/02/2019




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


                                    No. 18-60281
                                                                                    FILED
                                                                                 April 2, 2019
                                  Summary Calendar
                                                                               Lyle W. Cayce
                                                                                    Clerk
JORGE LUIS REYES SALAZAR, Reyes-Salazar, also known as Jorge Luis
Reyes-Salazar,

                                                 Petitioner

v.

WILLIAM P. BARR, U. S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A201 183 231


Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *
       Jorge Luis Reyes Salazar, a citizen and native of Mexico, petitions for
review of the order of the Board of Immigration Appeals (BIA) denying his
motion to reopen, for reconsideration, and for adjustment of status. In his
motion, he challenged the BIA’s decision affirming the Immigration Judge’s
(IJ) denial of his application for asylum, withholding of removal, and relief



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-60281

under the Convention Against Torture (CAT) based on his imputed political
opinion and his membership in a particular social group consisting of his
family.
      This court reviews the denial of motions to reopen and motions for
reconsideration under a highly deferential abuse-of-discretion standard. Le v.
Lynch, 819 F.3d 98, 104 (5th Cir. 2016); Zhao v. Gonzales, 404 F.3d 295, 303
(5th Cir. 2005). Under this standard, this court will not disturb the BIA’s
decision, even if the court determines that the BIA decision is “in error, so long
as it is not capricious, racially invidious, utterly without foundation in the
evidence, or otherwise so aberrational that it is arbitrary rather than the result
of any perceptible rational approach.” Osuchukwu v. INS, 744 F.2d 1136, 1142
(5th Cir. 1984).
      In his petition for review, Reyes Salazar argues that the BIA erred by
failing to grant his motion for reconsideration to correct the IJ’s legal and
factual mistakes and the BIA’s application of the incorrect credibility standard
on appeal. Further, he contends that his motion for reconsideration was not
time barred, as the BIA determined, because it was subject to equitable tolling.
For the BIA to grant a motion to reconsider, the alien must “identify a change
in the law, a misapplication of the law, or an aspect of the case that the BIA
overlooked.” Chambers v. Mukasey, 520 F.3d 445, 448 (5th Cir. 2008) (internal
quotation marks and citation omitted). When seeking reconsideration, an
alien may either invoke the BIA’s regulatory power to sua sponte reconsider
proceedings under 8 C.F.R. § 1003.2(a) or invoke the statutory right to
reconsider proceedings under 8 U.S.C. § 1229a(c)(6). See Lugo-Resendez v.
Lynch, 831 F.3d 337, 340-41 (5th Cir. 2016). While the filing of a statutory
motion to reconsider is subject to time constraints, a regulatory motion to
reconsider may be filed at any time. See § 1229a(c)(6)(B); § 1003.2(a).



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                                  No. 18-60281

      We lack jurisdiction to consider an issue when an applicant has failed to
exhaust it by raising it in the first instance before the BIA, either on direct
appeal or in a motion to reopen. Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir.
2004). Reyes Salazar’s motion asserted that it was timely filed and did not
contain any equitable tolling argument. Therefore, we lack jurisdiction to
review Reyes Salazar’s arguments for equitable tolling. See id. Further, the
BIA has complete discretion to deny a regulatory motion to sua sponte
reconsider. See Gonzalez-Cantu v. Sessions, 866 F.3d 302, 306 (5th Cir. 2017),
cert. denied, 138 S. Ct. 677 (2018). We thus lack jurisdiction to consider the
refusal by the BIA to exercise its regulatory power to sua sponte reconsider
Reyes Salazar’s removal order. See id.
      As to the motion to reopen, Reyes Salazar argues that the BIA abused
its discretion because the evidence presented with the motion compelled a
decision contrary to the IJ’s.    A motion to reopen must be based on new
evidence and must make a prima facie showing of eligibility for the underlying
relief sought. See INS v. Abudu, 485 U.S. 94, 104 (1988). In support of his
motion to reopen, Reyes Salazar included media and human rights reports
regarding the family’s political activism and the military’s involvement with
violence and illegal activity in Mexico. While the articles reference his family’s
involvement in politics and activism, they do not include any new information
that shows Reyes Salazar’s involvement. Further, the report does not refute
the agency’s finding that his family was harmed by the Sinaloa cartel in
retaliation for Reyes Salazar’s cousin’s involvement with a rival cartel.
Moreover, it does not demonstrate that the military collaborated with the
cartel to persecute his family, as Reyes Salazar alleged.
      Finally, Reyes Salazar contends that the BIA should have reopened his
case to withdraw the final order of removal while his application for



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adjustment of status based on his recent marriage was pending. “[M]arriages
contracted after the institution of exclusion or deportation proceedings” are
presumptively fraudulent. Ramchandani v. Gonzales, 434 F.3d 337, 340 (5th
Cir. 2005). The presumption may only be rebutted by “clear and convincing
evidence . . . that the marriage was entered into in good faith and . . . was not
entered into for the purpose of procuring the alien’s admission as an
immigrant.” Id. (quoting 8 U.S.C. § 1255(e)).      The BIA found that Reyes
Salazar failed to provide “sufficient corroboration regarding the length and
nature” of his purported marriage. His petition for discretionary review does
not specifically explain how the evidence shows his prima facie eligibility for
the relief sought.
      Based on the foregoing, Reyes Salazar’s petition for review is DENIED.




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