     Case: 17-60324      Document: 00514511926         Page: 1    Date Filed: 06/13/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit
                                    No. 17-60324                               FILED
                                  Summary Calendar                         June 13, 2018
                                                                          Lyle W. Cayce
                                                                               Clerk
GRACIA MARIA BARAHONA-MIRA,

                                                 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. A097 739 452


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Gracia Maria Barahona-Mira, a native and citizen of El Salvador,
petitions for review of the decision of the Board of Immigration Appeals (BIA)
dismissing her appeal of an order of an Immigration Judge (IJ) denying her
motion to reopen removal proceedings and to rescind an earlier in absentia
removal order. She contends that she did not receive proper notice of the
removal hearing because it was not addressed to her but allegedly to her


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-60324

parent. Because she was not under 14 years of age at the time, Barahona-Mira
contends that service on a parent was insufficient to satisfy the statutory
requirements of proper service.
      In reviewing the denial of a motion to reopen removal proceedings, we
apply a deferential abuse of discretion standard.           Hernandez-Castillo v.
Sessions, 875 F.3d 199, 203 (5th Cir. 2017). The BIA’s decision must be upheld
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) (internal quotation marks and citation omitted). We review
the BIA’s factual findings under the substantial evidence test, meaning that
we 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).
      The address Barahona-Mira provided to the Department of Homeland
Security (DHS) included her name, as well as “c/o Gloria A. Iraheta.”
Substantial evidence supports the BIA’s finding that the hearing notice was
mailed to this address. See id. The BIA found that service thus complied with
the statute and applicable regulations, citing 8 C.F.R. § 103.8 (previously
codified at 8 C.F.R. § 103.5a (2003)) and 8 U.S.C. § 1229(c). The evidence does
not compel a contrary conclusion. See Chun, 40 F.3d at 78; see also 8 U.S.C.
§ 1229a(b)(5)(A), (B). Also, substantial evidence supports the BIA’s finding
that Barahona-Mira failed to rebut the presumption of delivery of the notice.
See Chun, 40 F.3d at 78; In re M-R-A-, 24 I. & N. Dec. 665, 672-73 (BIA 2008).
      For the first time before this court, Barahona-Mira argues that the 2003
Notice to Appear (NTA) failed to inform her in Spanish of the consequences of
failing to report an address change. We do not have jurisdiction to review this
claim.   See Ramos-Torres v. Holder, 637 F.3d 544, 547 (5th Cir. 2011).



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                                   No. 17-60324

Barahona-Mira      complains     that   the   BIA   did   not     consider   evidence
demonstrating the hardship her husband would suffer if she was deported, as
well as evidence establishing her eligibility for an adjustment of status. The
IJ, with whom the BIA agreed, noted this contention but correctly determined
that Barahona-Mira’s motion to reopen based on these circumstances was
untimely. See 8 U.S.C. § 1229a(c)(7)(C)(i).
      We do not have jurisdiction to review Barahona-Mira’s apparent
argument for equitable tolling of the deadline because she did not raise this
argument before the BIA. See Ramos-Torres, 637 F.3d at 547. Additionally,
we do not have jurisdiction to review a challenge to the BIA’s decision declining
to exercise its sua sponte authority to reopen Barahona-Mira’s removal
proceedings. See Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249-50 (5th Cir.
2004).   Lastly, Barahona-Mira’s argument that the BIA violated her due
process rights by not reopening her removal proceedings so that she could
adjust her status is unavailing “because there is no liberty interest at stake in
a motion to reopen due to the discretionary nature of the relief sought.” See
Gomez-Palacios v. Holder, 560 F.3d 354, 361 n.2 (5th Cir. 2009). Accordingly,
Barahona-Mira’s petition for review is DENIED in part and DISMISSED in
part for lack of jurisdiction.




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