Case: 16-60602 Document: 00514570178 Page: 1 Date Filed: 07/25/2018
REVISED July 25, 2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 23, 2018
No. 16-60602
Lyle W. Cayce
Clerk
SANDRA GABRIELA HERNANDEZ-ANDRADE; ARTURO ROBERTO
RAUDALES-HERNANDEZ,
Petitioners
v.
JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of
the Board of Immigration Appeals
BIA No. A098 285 582
BIA No. A098 285 583
Before ELROD, COSTA, and HO, Circuit Judges.
PER CURIAM:*
Sandra Gabriela Hernandez-Andrade petitions—on behalf of both
herself and her son Arturo Roberto Raudales-Hernandez—for review of an
order of the Bureau of Immigration Appeals (the “BIA”) dismissing a motion to
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-60602 Document: 00514570178 Page: 2 Date Filed: 07/25/2018
No. 16-60602
reconsider her motion to reopen. Because we lack jurisdiction, the petition for
review is dismissed.
I.
Hernandez-Andrade and her son—natives and citizens of Honduras—
entered the United States illegally near Eagle Pass, Texas in June 2004. The
Border Patrol briefly detained both and processed them for removal
proceedings. Hernandez-Andrade and her son were personally served with
notices to appear charging them with being present in the United States
without admission or parole. Both notices explained that a hearing date would
be set later, and Hernandez-Andrade confirmed in writing that she had been
advised in Spanish of the consequences of failing to appear.
While detained, Hernandez-Andrade expressed her intention to reside
with her sister in North Hills, California, and provided the border patrol with
that address. Approximately one month later, the immigration court sent a
notice of hearing to that address via regular mail. Though the notice of hearing
was not returned as undeliverable, Hernandez-Andrade contends that she
never received it. She therefore failed to appear for proceedings before the
immigration court and was ordered removed in absentia.
About 11 years later, in 2015, Hernandez-Andrade filed a motion to
reopen removal proceedings, contending that she would have appeared at her
immigration hearing had she received notice. The immigration judge denied
Hernandez-Andrade’s motion to reopen in a written decision and the BIA
affirmed. This petition for review followed.
II.
We have jurisdiction to “review a final order of removal only if . . . the
alien has exhausted all administrative remedies available to the alien as of
right.” 8 U.S.C. § 1252(d)(1). See also Wang v. Ashcroft, 260 F.3d 448, 452 (5th
Cir. 2001). “Petitioners fail to exhaust their administrative remedies as to an
2
Case: 16-60602 Document: 00514570178 Page: 3 Date Filed: 07/25/2018
No. 16-60602
issue if they do not first raise the issue before the BIA, either on direct appeal
or in a motion to reopen.” Omari v. Holder, 562 F.3d 314, 318 (5th Cir. 2009).
III.
Before this Court, Hernandez-Andrade claims that ordering her removal
in absentia violated her due process rights. But Hernandez-Andrade never
presented a due process argument to the BIA. Rather, she argued that the
immigration judge erred in concluding that she received proper notice of the
removal hearing based on the evidence presented and that the BIA should
exercise its sua sponte authority to reopen proceedings.
This failure is fatal to our jurisdiction. While not presenting
constitutional claims to the BIA may be excused, see Contreras-Banda v.
Mukasey, 283 F. App’x 300, 303 (5th Cir. 2008), that is not true when “a
petitioner seeks to raise a claim not presented to the BIA and the claim is one
that the BIA has adequate mechanisms to address and remedy.” Roy v.
Ashcroft, 389 F.3d 132, 137 (2004) (quoting Goonsuwan v. Ashcroft, 252 F.3d
383, 390 (5th Cir. 2001)). Here, although Hernandez-Andrade’s argument “is
couched in terms of due process, it actually concerns ‘procedural error
correctable by the BIA.’ ” Roy, 389 F.3d at 137 (quoting Anwar v. INS, 116
F.3d 140, 144 n.4 (5th Cir. 1997)).
Hernandez-Andrade claims only that she was deprived of a full and fair
hearing because she did not receive notice, but the BIA could have granted her
motion to reopen—thus curing any alleged due process violation that occurred.
See, e.g., id.; Sarabia-Lopez v. Lynch, 623 F. App’x 720, 721 (5th Cir. 2015).
Therefore, Hernandez-Andrade’s petition is non-exhausted and we lack
jurisdiction. 1
1 It is difficult to see how Hernandez-Andrade could succeed on her due process
arguments even if we had jurisdiction. We have repeatedly held that “there is no liberty
interest at stake in a motion to reopen due to the discretionary nature of the relief sought,”
3
Case: 16-60602 Document: 00514570178 Page: 4 Date Filed: 07/25/2018
No. 16-60602
IV.
Hernandez-Andrade’s Petition for Review is DISMISSED.
and have done so even “assuming arguendo . . . that [the petitioner] could establish that he
was eligible for relief.” Hernandez-Castillo v. Sessions, 875 F.3d 199, 205 (5th Cir. 2017)
(quoting Gomez-Palacios v. Holder, 560 F.3d 354, 361 n.2 (5th Cir. 2009) (collecting cases)).
4