Case: 16-60650 Document: 00514266602 Page: 1 Date Filed: 12/08/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-60650
Fifth Circuit
FILED
Summary Calendar December 8, 2017
Lyle W. Cayce
JOSE LUIS LOPEZ-CRISTALES, Clerk
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. A076 650 917
Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
Jose Luis Lopez-Cristales, a native and citizen of Guatemala, petitions
this court to review the denial of his motion to reopen in absentia removal
proceedings. We review the rulings of law by the Board of Immigration
Appeals (BIA) de novo and its findings of fact for substantial evidence. Zhu v.
Gonzales, 493 F.3d 588, 594 (5th Cir. 2007). We “may not overturn the BIA’s
factual findings unless the evidence compels a contrary conclusion.” Gomez-
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-60650 Document: 00514266602 Page: 2 Date Filed: 12/08/2017
No. 16-60650
Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009). Because the BIA
summarily affirmed the decision of the immigration judge (IJ) without opinion,
we review the IJ’s decision. Galvez-Vergara v. Gonzales, 484 F.3d 798, 801 (5th
Cir. 2007).
An in absentia removal order may be rescinded upon a motion to reopen
filed at any time if the alien demonstrates that he did not receive notice in
accordance with 8 U.S.C. § 1229(a). 8 U.S.C. § 1229a(b)(5)(C)(ii). Nothing that
Lopez-Cristales has presented compels a conclusion contrary to the IJ’s
determination that he was not entitled to reopening based on a lack of notice.
See Gomez–Palacios, 560 F.3d at 358.
The time limitations for filing a motion to reopen do not apply if the
reason for the motion is to apply for asylum, withholding of removal, or
Convention Against Torture (CAT) relief and the motion “is based on changed
country conditions arising in the country of nationality.” 8 U.S.C.
§ 1229a(c)(7)(C)(ii). The IJ found that Lopez-Cristales failed to show changed
conditions in Guatemala as grounds for a claim of asylum. This decision was
not capricious, lacking foundation in the evidence, or otherwise so irrational
that it was arbitrary. See Gomez–Palacios, 560 F.3d at 358.
To the extent that Lopez-Cristales contends that the IJ’s failure to
exercise its discretion to reopen the removal proceedings sua sponte was error,
we lack jurisdiction over such a claim. Enriquez-Alvarado v. Ashcroft, 371 F.3d
246, 248-50 (5th Cir. 2004).
Because we lack jurisdiction over the decision not to reopen the removal
proceedings sua sponte, Lopez-Cristales’s petition is DISMISSED, IN PART,
on that basis. The remainder of his petition is DENIED. The Respondent’s
motion to summarily deny the petition for review is DENIED AS
UNNECESSARY.
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