     Case: 09-60221     Document: 00511116159          Page: 1    Date Filed: 05/19/2010




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

                                                  FILED
                                                                            May 19, 2010
                                     No. 09-60221
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

JUAN AYAVACA-ZEAS, also known as Juan Antonio Ayavaca-Zeas,

                                                   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. A73 748 556


Before KING, STEWART and HAYNES, Circuit Judges.
PER CURIAM:*
        Juan Ayavaca-Zeas (Ayavaca) petitions this court for review of the order
of the Board of Immigration Appeals (BIA) denying his motion to reopen his in
absentia removal proceedings. Ayavaca argues that the BIA erred by denying
his motion to reopen because notice of the March 27, 1995, hearing was only
mailed to his attorney. He contends receipt of the notice of hearing by counsel
is insufficient and, as a result, his in absentia order should be rescinded.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-60221   Document: 00511116159 Page: 2        Date Filed: 05/19/2010
                                No. 09-60221

      The decision to reopen proceedings is a discretionary decision, and this
court applies a highly deferential abuse of discretion standard when reviewing
the BIA’s denial of a motion to reopen. Lara v. Trominski, 216 F.3d 487, 496
(5th Cir. 2000). This court will affirm the BIA’s decision as 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.” Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir.
2006) (citation omitted).
      Ayavaca has not shown that the BIA abused its discretion in denying the
motion to reopen. Receipt of the notice of hearing by counsel is sufficient notice
because personal service on Ayavaca was not practicable.           See 8 U.S.C.
§ 1252b(a)(2), (c)(3)(B) (1994). Thus, the BIA did not abuse its discretion in
denying Ayavaca’s motion to reopen. The petition for review is DENIED.




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