Case: 19-60500 Document: 00515694927 Page: 1 Date Filed: 01/05/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 5, 2021
No. 19-60500
Summary Calendar Lyle W. Cayce
Clerk
Santiago Antonio Perez-Escobar,
Petitioner,
versus
Jeffrey A. Rosen, Acting U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A098 486 818
Before Higginbotham, Jones, and Costa, Circuit Judges.
Per Curiam:*
Santiago Antonio Perez-Escobar, a native and citizen of Honduras,
petitions for review of the decision of the Board of Immigration Appeals
(BIA) dismissing his appeal of an immigration judge’s (IJ) denial of his
motion to reopen removal proceedings and to rescind the in absentia removal
*
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opinion should not be published and is not precedent except under the limited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. 19-60500
order. He contends the BIA and IJ erred in finding that he did not provide
his address to immigration authorities and that the BIA abused its discretion
in refusing to reopen the proceedings sua sponte.
This court applies “a highly deferential abuse-of-discretion standard
in reviewing the denial of a motion to reopen removal proceedings.”
Hernandez-Castillo v. Sessions, 875 F.3d 199, 203 (5th Cir. 2017). Under that
standard, this court must affirm the decision as long as it is “not capricious,
without foundation in the evidence, or otherwise so irrational that it is
arbitrary.” Id. at 203-04. The BIA’s conclusions of law are reviewed de novo
and its findings of fact are reviewed for substantial evidence. Barrios-
Cantarero v. Holder, 772 F.3d 1019, 1021 (5th Cir. 2014). Under the
substantial evidence test, “this court may not overturn the BIA’s factual
findings unless the evidence compels a contrary conclusion.” Gomez-Palacios
v. Holder, 560 F.3d 354, 358 (5th Cir. 2009).
If an alien fails to appear at a deportation hearing, and an IJ finds that
notice was provided and removability has been established, the IJ must order
the alien removed in absentia. 8 U.S.C. § 1229a(b)(5)(A). If an alien fails to
provide a mailing address to immigration authorities, no written notice is
required before he may be removed in absentia. See § 1229a(b)(5)(B). Perez-
Escobar argues the BIA and IJ incorrectly found that he did not provide his
address despite his sworn statement to the contrary. However, the notice to
appear (NTA) and I-213 form both state that Perez-Escobar did not provide
an address to authorities. As a result, substantial evidence supports the
finding of the BIA and IJ, and they did not abuse their discretion in
concluding he was properly ordered removed in absentia and denying his
motion to reopen. See Gomez-Palacios, 560 F.3d at 358, 360-61.
For the first time on appeal, Perez-Escobar asserts he was not
personally served with the NTA and that the NTA and I-213 are unreliable.
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No. 19-60500
He has failed to exhaust these issues since he did not raise them before the
BIA, and this court therefore lacks jurisdiction to consider his arguments. See
Wang v. Ashcroft, 260 F.3d 448, 452 (5th Cir. 2011). This court is also
without jurisdiction to consider his claim that the BIA should have exercised
its discretionary authority to reopen the removal proceedings sua sponte. See
Hernandez-Castillo, 875 F.3d at 206-07.
Accordingly, Perez-Escobar’s petition for review is DISMISSED
IN PART AND DENIED IN PART. His motion to appoint counsel is
DENIED as moot.
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