     Case: 10-60003 Document: 00511379585 Page: 1 Date Filed: 02/11/2011




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

                                                 FILED
                                                                          February 11, 2011
                                     No. 10-60003
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

ABNER FELIPE QUINTANA-FLORIAN,

                                                   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. A076 819 661


Before JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Abner Felipe Quintana-Florian, a native and citizen of Guatemala, seeks
review of the Board of Immigration Appeals’s (BIA) dismissal of his appeal from
the Immigration Judge’s denial of his motion to reopen an in absentia removal
order. We review the denial of a motion to reopen “under a highly deferential
abuse-of-discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir.
2005). The BIA’s decision will be upheld as long as it is not “capricious, racially
invidious, utterly without foundation in the evidence, or otherwise so irrational

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-60003

that it is arbitrary rather than the result of any perceptible rational approach.”
Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006). The BIA’s factual findings
are reviewed under the substantial evidence test, meaning that this court may
not overturn the BIA’s factual findings unless the evidence compels a contrary
conclusion. Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994).
      Quintana-Florian was ordered removed in absentia when he failed to
appear for a hearing in 1998.      In 2008, he sought to reopen the removal
proceedings on the ground that he had not received notice of the hearing date.
      To rescind an order of removal within 180 days after the order, the alien
must “demonstrate that [his] failure to appear was because of exceptional
circumstances.”    8 U.S.C. § 1229a(b)(5)(C)(i).   An order of removal may be
rescinded at any time if the alien demonstrates, inter alia, that he did not
receive notice “in accordance with paragraph (1) or (2) of [8 U.S.C. §] 1229(a).”
§ 1229a(b)(5)(C)(ii).
      The BIA found, and Quintana-Florian does not dispute, that his motion
was filed more than 180 days after the removal order. He argues, however, that
the 180-day time limit should be equitably tolled based upon the ineffective
assistance of his previous counsel of record.
      “[A] request for equitable tolling of a time- or number-barred motion to
reopen on the basis of ineffective assistance of counsel is ‘in essence an argument
that the BIA should have sua sponte reopened the proceeding based upon the
doctrine of equitable tolling.’” Ramos-Bonilla v. Mukasey, 543 F.3d 216, 219-20
(5th Cir. 2008) (citation omitted). We lack jurisdiction to review the BIA’s
decision not to reopen removal proceedings sua sponte. Id. Accordingly, we need
not address Quintana-Florian’s arguments of equitable tolling and ineffective
assistance of counsel. See id.
      The BIA’s finding that Quintana-Florian was notified of the removal
hearing via service to his previous counsel of record is supported by substantial
evidence in the record. As Quintana-Florian has pointed to no evidence that

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                                 No. 10-60003

compels a contrary conclusion, he has not established that the BIA abused its
discretion in finding that he received notice of the hearing in compliance with
§ 1229(a)(1) and (a)(2) and that he therefore could not reopen his removal
proceedings pursuant to § 1229a(b)(5)(C)(ii). See Chun, 40 F.3d at 78.
      Because the BIA did not abuse its discretion in denying Quintana-Florian’s
motion to reopen, we need not address his argument that the in absentia
removal order in the underlying immigration proceeding violated his due process
rights. We have held that the denial of a motion to reopen cannot violate an
alien’s due process rights because the relief sought in such a motion is
discretionary in nature. See Gomez-Palacios v. Holder, 560 F.3d 354, 361 n.2
(5th Cir. 2009). Thus, Quintana-Florian’s argument that his due process rights
were violated by the lack of any evidentiary hearing in connection with his
motion to reopen is without merit. The petition for review is DENIED.




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