Case: 19-60506 Document: 00515587418 Page: 1 Date Filed: 10/02/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 2, 2020
No. 19-60506 Lyle W. Cayce
Summary Calendar Clerk
Ivani Magalhaes Nascimento,
Petitioner,
versus
William P. Barr, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A097 902 254
Before Jolly, Elrod, and Graves, Circuit Judges.
Per Curiam:*
Ivani Magalhaes Nascimento seeks review of the Board of
Immigration Appeals (BIA) order denying her motion to reconsider and
remand to the Immigration Judge (IJ) or terminate the removal proceedings.
Motions to reconsider are reviewed “under a highly deferential abuse-of-
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 19-60506
discretion standard.” Barrios-Cantarero v. Holder, 772 F.3d 1019, 1021 (5th
Cir. 2014) (internal quotation marks and citation omitted). A BIA ruling
denying a motion to remand that the alien filed after the BIA entered a
decision on direct appeal is properly treated like a motion to reopen, see Wang
v. Ashcroft, 260 F.3d 448, 451-52 (5th Cir. 2001), which is also reviewed for
abuse of discretion, Panjwani v. Gonzales, 401 F.3d 626, 632 (5th Cir. 2005),
as is a decision not to terminate proceedings, Velasquez v. Gonzales, 239 F.
App’x 68, 69 (5th Cir. 2007). The BIA “abuses its discretion when it issues
a decision which is 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, 772 F.3d at 1021.
The BIA found Nascimento’s motion to reconsider untimely, because
it was filed more than 30 days after the BIA’s decision for which Nascimento
sought reconsideration, and because Nascimento failed to specify any legal
or factual error in the decision. See 8 U.S.C. § 1229a(c)(6)(B), (C); 8 C.F.R.
§ 1003.2(b)(1), (2). The BIA also found that Nascimento’s continuous
presence in the United States ended in 2005, such that she could not establish
the requisite 10 years of continuous presence for cancellation of removal,
which was the basis of her request for remand. As Nascimento does not
challenge, or even acknowledge, these bases for denial in her briefing, she has
waived the issues. See Chambers v. Mukasey, 520 F.3d 445, 448 n.1 (5th Cir.
2008); Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
With respect to Nascimento’s alternative request to terminate the
removal proceedings, the BIA concluded that even if the motion for
reconsideration was not time-barred and was statutorily compliant, her
argument in support of reconsideration and termination—that the IJ lacked
jurisdiction to enter the in absentia removal order—was foreclosed by BIA
and Fifth Circuit precedent. The BIA did not abuse its discretion in
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No. 19-60506
determining that Nascimento’s argument that the IJ lacked jurisdiction to
enter the in absentia order in light of Pereira v. Sessions, 138 S. Ct. 2105
(2018), was foreclosed. See Pierre-Paul v. Barr, 930 F.3d 684, 689-91 (5th Cir.
2019), cert. denied, No. 19-779, 2020 WL 1978950 (U.S. Apr. 27, 2020);
Mauricio-Benitez v. Sessions, 908 F.3d 144, 148 n.1 (5th Cir. 2018), cert. denied,
139 S. Ct. 2767 (2019); Fuentes-Pena v. Barr, 917 F.3d 827, 830 & n.1 (5th Cir.
2019). We lack jurisdiction to consider Nascimento’s argument, raised for
the first time on appeal, that she is relieved of her burden to inform the
immigration court of a change of address when, as here, the Department of
Homeland Security is aware that the address on the notice to appear (NTA)
is not a valid residential address. See, e.g., Nunez v. Sessions, 882 F.3d 499,
505 n.2 (5th Cir. 2018) (holding that alien failed to exhaust claim that an NTA
was defective for not specifying a date or time of the hearing).
Petition DENIED in part and DISMISSED in part for lack of
jurisdiction.
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