     Case: 17-60218      Document: 00514453382         Page: 1    Date Filed: 05/01/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                       United States Court of Appeals

                                    No. 17-60218
                                                                                Fifth Circuit

                                                                              FILED
                                  Summary Calendar                         May 1, 2018
                                                                         Lyle W. Cayce
EDGAR GARCIA-DIAZ,                                                            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. A200 224 381


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Edgar Garcia-Diaz, a native and citizen of Mexico, seeks review of the
decision of the Board of Immigration Appeals (“BIA”) affirming the order of the
immigration judge (“IJ”) denying his motion to reopen removal proceedings.
Garcia first petitioned for review in this court in 2016 after the BIA affirmed
the IJ’s denial of adjustment of status but remanded for consideration of his
request for voluntary departure. We dismissed that appeal for lack of subject-


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-60218       Document: 00514453382         Page: 2    Date Filed: 05/01/2018


                                      No. 17-60218

matter jurisdiction, on the ground that there was no reviewable final order of
removal in light of the BIA’s remand. Garcia then appeared before the IJ to
withdraw his request for voluntary departure, resulting in a final order of
removal.     However, rather than petitioning for review of that final order,
Garcia filed a motion in this court to set aside the order dismissing his
premature petition for review. We denied that motion.
       Several months later, Garcia filed a motion before the IJ to reopen his
removal proceedings, arguing that our intervening decision in Holguin-
Mendoza v. Lynch, 835 F.3d 508 (5th Cir. 2016), suggested that we should not
have dismissed his petition or denied his motion to set aside that dismissal.
The IJ denied that motion, reasoning that Garcia failed to present “new
material facts or evidence that was previously unavailable, as required by
statute and regulation. See 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R. § 1003.23(b)(3).
The IJ also declined to reopen the case sua sponte. The BIA affirmed, and
Garcia timely petitioned for review. 1
       We review the denial of a motion to reopen under a “highly deferential
abuse-of-discretion standard.” Gomez-Palacios v. Holder, 560 F.3d 354, 358
(5th Cir. 2009). The agency decision 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 v. Gonzales, 404 F.3d 295, 304 (5th Cir. 2005) (quoting
Pritchett v. I.N.S., 993 F.2d 80, 83 (5th Cir. 1993)). Although the BIA did not
expressly adopt the IJ’s decision in this matter, it favorably cited the IJ’s
reasoning and added minimal additional reasoning; thus, we review both
decisions. See Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007).


       1Garcia seeks review of only the denial of his motion to reopen. As to the decision to
not reopen sua sponte, we lack jurisdiction to review that purely discretionary decision. See
Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249–50 (5th Cir. 2004).


                                             2
    Case: 17-60218     Document: 00514453382     Page: 3   Date Filed: 05/01/2018


                                  No. 17-60218

      “A motion to reopen is a form of procedural relief that ‘asks the Board to
change its decision in light of newly discovered evidence or a change in
circumstances since the hearing.’” Lugo-Resendez v. Lynch, 831 F.3d 337, 339
(5th Cir. 2016) (alteration and quotation marks omitted) (quoting Dada v.
Mukasey, 554 U.S. 1, 12 (2008)). Here, Garcia failed to show that our decision
in Holguin-Mendoza has any impact on the agency’s decision regarding his
removal. In Holguin-Mendoza, we held that “a BIA decision which resolves the
merits of an appeal but remands for further proceedings as to voluntary
departure is a final order of removal for purposes of judicial review.” 835 F.3d
at 509. Holguin-Mendoza is relevant to our jurisdiction over petitions for
review, not to the Board’s decision regarding removability. Accordingly, the
BIA did not abuse its discretion in concluding that Holguin-Mendoza “is not
new evidence relating to [Garcia’s] removal proceedings, as is required for a
motion to reopen under 8 C.F.R. § 1003.23(b)(3).” Furthermore, contrary to
Garcia’s argument, the BIA’s decision does not deprive him of procedural due
process by precluding any opportunity for review of his order of removal. He
could have petitioned for review after he withdrew his request for voluntary
departure and the IJ entered a final order of removal. See Ponce-Osorio v.
Johnson, 824 F.3d 502, 507 (5th Cir. 2016) (“[A] petitioner will be able to appeal
a non-remanded issue once the IJ on remand has entered a final order of
removal.”).
      To the extent Garcia contends that the IJ’s recitation of the procedural
history of this matter reflects an improper focus, he himself offered the
procedural posture of his case as relevant to why his motion to reopen should
succeed. He explicitly sought to reopen so that he could again petition for
review following our dismissal of his earlier, premature petition. The IJ did
not attach weight to an improper consideration.



                                        3
    Case: 17-60218   Document: 00514453382     Page: 4   Date Filed: 05/01/2018


                                No. 17-60218

      The record supports the BIA’s and the IJ’s determination that Garcia-
Diaz did not present new, material evidence or circumstances, and thus, the
agency acted within its discretion in denying reopening. See Zhao, 404 F.3d at
304. The petition for review is DENIED.




                                      4
