Case: 13-60329 Document: 00512568853 Page: 1 Date Filed: 03/21/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-60329 FILED
Summary Calendar March 21, 2014
Lyle W. Cayce
Clerk
ALINA JIMENEZ-VASQUEZ,
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. A099 661 570
Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
Alina Jimenez-Vasquez, a native and citizen of Nicaragua, petitions this
court for review of the Board of Immigration Appeals’ (BIA) decision dismissing
her appeal of the Immigration Judge’s (IJ) denial of the motion to reopen her
in absentia removal proceedings. Jimenez-Vasquez contends that the record
does not establish by clear, unequivocal, and convincing evidence that Pablo
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-60329
Rocha was authorized to represent her in her removal proceedings or that she
received the written notice required by 8 U.S.C. § 1229(a).
Any alien who fails to appear at a removal proceeding shall be ordered
removed in absentia if the government establishes by clear, unequivocal, and
convincing evidence that the alien is removable and that the alien, or the
alien’s counsel of record, was provided the written notice required by
§ 1229(a)(1) and (a)(2). 8 U.S.C. § 1229a(b)(5)(A). Section 1229(a)(1) provides
that a written Notice to Appear “shall be given in person to the alien (or, if
personal service is not practicable, through service by mail to the alien or to
the alien’s counsel of record, if any).” § 1229(a)(1). “[I]n the case of any change
or postponement in the time and place of such proceedings, . . . a written notice
shall be given in person to the alien (or, if personal service is not practicable,
through service by mail to the alien or to the alien’s counsel of record, if any).”
§ 1229(a)(2)(A). An order of removal entered in absentia may be rescinded
upon a motion to reopen filed at any time if the alien demonstrates that she
did not receive the requisite notice or that she was in federal or state custody
and the failure to appear was through no fault of her own. § 1229a(b)(5)(C)(ii).
A review of the record shows that Jimenez-Vasquez was afforded the
requisite notice. Jimenez-Vasquez was personally served with a written Notice
to Appear on May 9, 2006. On May 18, 2006, Rocha entered an appearance as
counsel of record for Jimenez-Vasquez and declared, under penalty of perjury,
that he was doing so at her request. Although the Notice of Entry of
Appearance as Attorney or Representative Before the Immigration Court
(EOIR-28) was not signed by Jimenez-Vasquez, the form explained that the
represented party’s signature was required if he or she claimed to be a citizen
or lawful permanent resident of the United States. Jimenez-Vasquez has not
cited any authority supporting her contention that her signature was required.
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No. 13-60329
Further, although the record does not contain any recording of a hearing
wherein she verbally consented to Rocha’s representation, transcripts are not
normally prepared for appeals from denials of motions to reopen in absentia
proceedings, see BOARD OF IMMIGRATION APPEALS PRACTICE MANUAL § 4.2(f)(ii)
(2013), and the record does not reflect that Jimenez-Vasquez either submitted
a transcription request or sought to review the tape recordings. Moreover,
Rocha appeared before the IJ for Jimenez-Vasquez’s hearing on July 6, 2006,
and the fact that he was personally served with the hearing notice dated May
23, 2006, suggests that he was present at the hearing scheduled for that date
as well. Consequently, the BIA’s determination that Rocha was Jimenez-
Vasquez’s counsel of record is supported by substantial evidence, and Jimenez-
Vasquez’s sworn assertions to the contrary do not compel a contrary
conclusion. See Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994).
On May 31, 2006, the immigration court notified Rocha by mail that
Jimenez-Vasquez’s hearing had been rescheduled for July 6, 2006. Jimenez-
Vasquez does not allege that personal service upon her was practicable, nor
does she argue that the BIA’s implicit finding otherwise was incorrect.
Therefore, by mailing notice of the July 6, 2006, hearing to Rocha, Jimenez-
Vasquez’s counsel of record, the immigration court provided the written notice
required to justify the IJ’s entry of the in absentia removal order. See
§ 1229(a)(2)(A); § 1229a(b)(5)(A). Although “the focus of the rescission inquiry,
in contrast to the standard for the initial entry of an in absentia order, is on
the actual receipt of the required notice and not whether the notice was
properly mailed,” Gomez-Palacios v. Holder, 560 F.3d 354, 360 (5th Cir. 2009),
Jimenez-Vasquez does not argue that Rocha failed to receive actual notice of
the July 6, 2006, hearing, and any such argument would be belied by Rocha’s
appearance at that hearing. Consequently, the BIA’s determination that
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Jimenez-Vasquez was provided sufficient notice is supported by substantial
evidence, and the record does not compel a contrary conclusion. See Chun, 40
F.3d at 78.
Finally, Jimenez-Vasquez does not assert an ineffective assistance of
counsel claim, nor does she challenge the BIA’s rejection of any such claim.
This issue is therefore abandoned. See Soadjede v. Ashcroft, 324 F.3d 830, 833
(5th Cir. 2003).
Jimenez-Vasquez has failed to show that the BIA abused its discretion
when it dismissed her appeal of the IJ’s denial of the motion to reopen her in
absentia removal proceedings. See Zhao v. Gonzales, 404 F.3d 295, 303 (5th
Cir. 2005). Accordingly, her petition for review is DENIED.
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