     Case: 16-60460      Document: 00514074789         Page: 1    Date Filed: 07/17/2017




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

                                    No. 16-60460                                   FILED
                                  Summary Calendar                             July 17, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk


WILLIAN PINEDA-HERRERA, Also Known as William Pineda-Herrera,

                                                 Petitioner,

versus

JEFFERSON B. SESSIONS, III, U.S. Attorney General,

                                                 Respondent.




                         Petition for Review of an Order of
                         the Board of Immigration Appeals
                               BIA No. A 200 968 272




Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *

       Willian Pineda-Herrera, a native and citizen of Honduras, petitions for



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-60460

review of an order of the Board of Immigration Appeals (“BIA”) dismissing his
appeal of an order of an immigration judge (“IJ”) denying his motion to reopen.
The BIA rejected Pineda-Herrera’s allegation that he was ordered removed in
absentia. Additionally, with respect to Pineda-Herrera’s assertion that the
proceedings should be reopened to allow him to seek a provisional waiver of
unlawful presence, the BIA determined that his motion to reopen was untimely
and also declined to reopen sua sponte. We granted the Attorney General’s
motion to dismiss the petition for lack of jurisdiction as to review of the BIA’s
decision to deny sua sponte reopening, but we denied the Attorney General’s
motion to dismiss as to the remainder of the BIA’s order.

      We review the denial of a motion to reopen “under a highly deferential
abuse-of-discretion standard.” Lugo-Resendez v. Lynch, 831 F.3d 337, 340 (5th
Cir. 2016) (internal quotations and citation omitted). The BIA “abuses its dis-
cretion when it issues a decision that is capricious, irrational, utterly without
foundation in the evidence, based on legally erroneous interpretations of stat-
utes or regulations, or based on unexplained departures from regulations or
established policies.” Id.

      Pineda-Herrera fails to address the BIA’s determinations that the
removal order was not ordered in abstentia; that the motion to reopen was
untimely because it was filed more than 90 days after the order of removal
became final; and that Pineda-Herrera failed to show that he exercised the
necessary due diligence for equitable tolling of the deadline for filing the
motion. See 8 U.S.C. § 1229a(c)(7)(C)(i); Lugo-Resendez, 831 F.3d at 343–44.
Those issues are therefore abandoned. See Soadjede v. Ashcroft, 324 F.3d 830,
833 (5th Cir. 2003).

      Pineda-Herrera’s sole argument is that, based on Matter of Barrientos-
Vivas, 2015 WL 4873228 (BIA June 25, 2015), the BIA should have granted his


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                                 No. 16-60460

motion to reopen. Barrientos-Vivas does not provide, however, that a desire to
apply for a provisional waiver is an exception to the requirement of timely fil-
ing a motion to reopen; in fact, Barrientos-Vivas explicitly noted that the
motion to reopen there was timely. See id. at *1; see also § 1229a(c)(7)(C).
Accordingly, Pineda-Herrera has failed to show that the BIA abused its discre-
tion in denying the motion to reopen, see Lugo-Resendez, 831 F.3d at 340, and
the petition for review is DENIED.




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