Case: 14-60491 Document: 00513210355 Page: 1 Date Filed: 09/28/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-60491
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
September 28, 2015
VICTOR ANTONIO REYES-BONILLA,
Lyle W. Cayce
Clerk
Petitioner
v.
LORETTA LYNCH, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A094 789 463
Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
Victor Antonio Reyes-Bonilla petitions for review of the decision of the
Board of Immigration Appeals (BIA) affirming the immigration judge’s (IJ’s)
denial of his motion to reopen in absentia removal proceedings and dismissing
his appeal. He also moves for a remand to the BIA to consider whether he has
made a showing for relief from removal based on new evidence.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-60491
Reyes-Bonilla raises three claims in his petition for review: (1) the BIA
erred by determining that he did not provide sufficient evidence to corroborate
his claim that he was unable to attend the removal hearing because he was
suffering from amnesia and depression, (2) the BIA erred by rejecting his
argument that he did not have notice of the hearing, and (3) the BIA erred by
failing to sua sponte reopen the removal proceedings. He does not expressly
challenge the BIA’s determination that he is ineligible to apply for asylum,
withholding of removal, and relief under the Convention Against Torture.
Thus, he has waived any challenge to that issue. See Chambers v. Mukasey,
520 F.3d 445, 448 n.1 (5th Cir. 2008); Brinkmann v. Dallas Cnty. Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Because Reyes-Bonilla’s motion to reopen was filed years after the order
of removal, 8 U.S.C. § 1229a(b)(5)(C)(i) is inapplicable. Further, the BIA’s
decision that there was no basis for reopening the removal proceedings under
§ 1229a(b)(5)(C)(ii) was not “capricious, irrational, utterly without foundation
in the evidence, based on legally erroneous interpretations of statutes or
regulations, or based on unexplained departures from regulations or
established policies.” Barrios-Cantarero v. Holder, 772 F.3d 1019, 1021 (5th
Cir. 2014). Accordingly, the BIA did not abuse its discretion in affirming the
IJ’s decision on that ground. See id.
Additionally, we note that even if the immigration statutes are subject
to equitable tolling, Reyes-Bonilla has failed to show that such tolling would
apply. See Mata v. Lynch, 135 S. Ct. 2150, 2156 & n.3 (2015) (expressing no
opinion as to whether the immigration statutes allow equitable tolling). He
did not expressly argue before the IJ or BIA that § 1229a should be equitably
tolled and does not challenge in his petition for review the BIA’s determination
that he failed to diligently pursue relief. Accordingly, he has waived any
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No. 14-60491
challenge to that determination. See Chambers, 520 F.3d at 448 n.1;
Brinkmann, 813 F.2d at 748.
Insofar as Reyes-Bonilla argues that the BIA violated his due process
rights by failing to consider the facts and circumstances of his case in
determining whether to sua sponte reopen the removal proceedings,
“discretionary relief from removal . . . is not a liberty or property right that
requires due process protection.” Ahmed v. Gonzales, 447 F.3d 433, 440 (5th
Cir. 2006). He also argues that the BIA erred in declining to sua sponte reopen
the proceedings. However, we lack jurisdiction to review the BIA’s
discretionary decision whether to exercise its sua sponte authority to reopen
removal proceedings. See Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249-50
(5th Cir. 2004).
Accordingly, the petition for review is DENIED in part and DISMISSED
in part for lack of jurisdiction. The motion for remand is DENIED.
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