          United States Court of Appeals
                      For the First Circuit


No. 13-1237

                       FRITZ JUNIOR DONNEE,

                           Petitioner,

                                v.

              ERIC H. HOLDER, JR., Attorney General,

                           Respondent.


               PETITION FOR REVIEW OF A DECISION OF
                 THE BOARD OF IMMIGRATION APPEALS


                              Before

                        Lynch, Chief Judge,
               Howard and Thompson, Circuit Judges.



     Stephen A. Lagana, Stephen A. Pegnam and Law Offices of
Stephen A. Lagana on brief for petitioner.
     Stuart F. Delery, Assistant Attorney General, Shelley R. Goad,
Assistant Director, and Nancy K. Canter, Trial Attorney, on brief
for respondent.



                           May 9, 2014
             HOWARD, Circuit Judge.      Petitioner Fritz Junior Donnee,

a native and citizen of Haiti, seeks review of a decision by the

Board of Immigration Appeals (BIA), which dismissed his appeal of

an Immigration Judge's denial of his request to reopen removal

proceedings.    Finding no error, we deny the petition.

                                    I.

             In 1995, Donnee was temporarily paroled into the United

States from Haiti for a period not to exceed two years.              See 8

U.S.C.   §   1182(d)(5)   (authorizing    temporary   parole   for   urgent

humanitarian    reasons   or   significant   public   benefit).      Donnee

overstayed.    In March 2009, after he had been charged with several

state criminal violations, the Department of Homeland Security

(DHS) served him with a Notice to Appear, charging him with

removability.     Donnee admitted the allegations in the Notice and

conceded the charge of removability at an immigration court hearing

in July 2009.      A few months later, he sought an adjustment of

status based on a petition for alien relative submitted by his

wife.    After several continuances, a hearing was scheduled for

early December 2010.      Neither Donnee nor his attorney appeared at

the hearing, and the Immigration Judge (IJ) ordered Donnee, in

absentia, removed to Haiti.

             Through counsel, Donnee timely filed a motion to reopen

the proceedings.    The ostensible basis for his motion was that DHS

had granted him Temporary Protected Status (TPS) on December 13,


                                   -2-
2010, and he was thus no longer removable and at a minimum his case

should be administratively closed.1     The IJ denied the motion,

observing that TPS "grants only temporary relief from removal and

does not make a recipient admissible."     (citing Matter of Sosa

Ventura, 25 I & N Dec. 391, 392-93 (BIA 2010)).   The IJ continued,

"Although the Respondent is protected from the execution of the

removal order while his registration in TPS is in effect, he

remains removable as charged. . . . Accordingly, the respondent's

receipt of TPS is not a material change justifying reopening his

case . . . ."   The IJ also rejected Donnee's argument that his TPS

status warranted reopening the case so that the proceedings could

be administratively terminated. (citing Matter of Sosa Ventura, 25

I & N Dec. at 396).   The BIA dismissed Donnee's subsequent appeal,

employing the same rationale that the IJ had.

                                II.

          A "denial of a motion to reopen will be upheld 'unless

the complaining party can show that the BIA committed an error of

law or exercised its judgment in an arbitrary, capricious, or

irrational way.'" Tawadrous v. Holder, 565 F.3d 35, 38 (1st Cir.

2009) (quoting Tandayu v. Mukasey, 521 F.3d 97, 100 (1st Cir.


     1
       In January 2010, pursuant to 8 U.S.C. § 1254a, the Secretary
of Homeland Security designated Haiti for TPS following a serious
earthquake. 75 Fed. Reg. 3476-02 (January 21, 2010). After being
extended several times, that status is currently scheduled to
expire on January 22, 2016. See Extension of the Designation of
Haiti for Temporary Protected Status, 79 Fed. Reg. 11808 (March 3,
2014).

                                -3-
2008)). In conducting this review, we accept the BIA's findings of

fact, "as long as they are supported by substantial evidence," and

we review legal conclusions de novo.       Smith v. Holder, 627 F.3d

427, 433 (1st Cir. 2010).     Withal, "[m]otions to reopen removal

proceedings are disfavored as contrary to 'the compelling public

interests    in   finality   and   the   expeditious   processing   of

proceedings.'"    Guerrero-Santana v. Gonzalez, 499 F.3d 90, 92 (1st

Cir. 2007) (quoting Raza v. Gonzalez, 484 F.3d 125, 127 (1st Cir.

2007)).

            Donnee argues that the BIA committed legal error when it

refused to reopen his removal proceedings so that they could be

administratively closed based on his grant of TPS.       An applicant

seeking to reopen proceedings must demonstrate a prima facie case

of eligibility for the relief sought by introducing material

evidence that was unavailable at the prior hearing.          Jutus v.

Holder, 723 F.3d 105, 110 (1st Cir. 2013).     Here, although Donnee

did not receive his TPS notice until after the hearing (which he

did not attend), the BIA correctly ruled that TPS only served to

prevent execution of the removal order in any event; it did not

affect the validity of the order. See Guerrero v. Holder, 667 F.3d

74, 79 n.6 (1st Cir. 2012) ("Although TPS does not preclude the

initiation of deportation proceedings or the entry of an order of

removal, it does prohibit such an order from being executed during




                                   -4-
the pendency of the designation.").   That ends the matter.   As we

find no error, the petition for review is denied.2




     2
       Donnee argues, in part, that the BIA may have improperly
required him to first show an entitlement to recission of the in
absentia order before he would be eligible to have his case
reopened. We discern no such requirement in the BIA order, either
explicit or implied.

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