Case: 19-60546 Document: 00515666090 Page: 1 Date Filed: 12/08/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 8, 2020
No. 19-60546 Lyle W. Cayce
Summary Calendar Clerk
Roberto Enrique Mauricio-Benitez, also known as Roberto
Sanchez-Fajardo,
Petitioner,
versus
William P. Barr, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A098 121 741
Before Barksdale, Graves, and Oldham, Circuit Judges.
Per Curiam:*
Roberto Enrique Mauricio-Benitez petitions for review of the Board
of Immigration Appeals’ (BIA) denying his motion, in the light of Pereira v.
Sessions, 138 S. Ct. 2105 (2018), to reopen and terminate his in absentia
*
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opinion should not be published and is not precedent except under the limited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.
Case: 19-60546 Document: 00515666090 Page: 2 Date Filed: 12/08/2020
No. 19-60546
removal proceedings. This court denied Mauricio’s previous petition for
review challenging an earlier BIA decision denying his motion to reopen
removal proceedings and rescind the in absentia order of removal. Mauricio-
Benitez v. Sessions, 908 F.3d 144 (5th Cir. 2018), cert. denied, 139 S. Ct. 2767
(2019). “This Court reviews the denial of a motion to reopen under a highly
deferential abuse-of-discretion standard.” Barrios-Cantarero v. Holder, 772
F.3d 1019, 1021 (5th Cir. 2014) (internal quotation marks and citation
omitted).
Mauricio asserts that, based on Pereira, his notice to appear (NTA)
was invalid because it failed to list the date and time of the removal hearing
and, therefore, the immigration court was without jurisdiction to conduct his
removal proceedings. He further asserts that reopening was warranted to
allow him to apply for cancellation of removal pursuant to 8 U.S.C.
§ 1229b(b)(1), given that, under Pereira, the defective NTA did not trigger
the stop-time rule of 8 U.S.C. § 1229b(d)(1)(A).
Both the BIA and this court have previously rejected similar claims.
See Yanez-Pena v. Barr, 952 F.3d 239, 241–46 (5th Cir. 2020), petition for cert.
filed (Apr. 8, 2020) (No. 19-1208); Pierre-Paul v. Barr, 930 F.3d 684, 688–93
(5th Cir. 2019), cert. denied, 140 S. Ct. 2718 (2020); Matter of Mendoza-
Hernandez, 27 I. & N. Dec. 520, 529–35 (BIA 2019) (en banc). Accordingly,
the BIA did not abuse its discretion by denying the motion to reopen on these
grounds. See Barrios-Cantarero, 772 F.3d at 1021 (holding the BIA “abuses
its discretion when it issues a decision that 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”).
Mauricio also contends that the BIA abused its discretion by refusing
to reopen his removal proceedings sua sponte. He asserts: the change in law
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No. 19-60546
represented by Pereira was an exceptional circumstance warranting
reopening sua sponte; and, by ignoring this assertion, the BIA failed to
properly consider his claims in favor of reopening sua sponte. We lack
jurisdiction to review Mauricio’s challenge to the BIA’s purely discretionary
election not to reopen removal proceedings sua sponte. See Hernandez-
Castillo v. Sessions, 875 F.3d 199, 206–07 (5th Cir. 2017). Further, insofar as
Mauricio claims the BIA ignored and failed to properly consider his claims,
we lack jurisdiction to consider his unexhausted challenge to the BIA’s “act
of decisionmaking”. Omari v. Holder, 562 F.3d 314, 320–21 (5th Cir. 2009);
see also Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004); 8 U.S.C.
§ 1252(d)(1).
Finally, Mauricio maintains the BIA abused its discretion by ignoring
his contention that the in absentia removal proceedings violated his
substantive and procedural due-process rights because, under Pereira, the
defective NTA did not give him proper statutory notice of the removal
hearing, and the immigration court lacked jurisdiction over his removal
proceedings. These assertions are unavailing. The BIA has no authority to
consider constitutional challenges. Falek v. Gonzales, 475 F.3d 285, 291 n.4
(5th Cir. 2007). Further, “due process claims are not cognizable in the
context of reopening proceedings”. Mejia v. Whitaker, 913 F.3d 482, 490 (5th
Cir. 2019). Moreover, Pereira does not afford him the relief he seeks. See
Yanez-Pena, 952 F.3d at 241–46; Pierre-Paul, 930 F.3d at 688–93.
DISMISSED in part; DENIED in part.
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