Case: 20-61033 Document: 00516064115 Page: 1 Date Filed: 10/21/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 20-61033
October 21, 2021
Summary Calendar
Lyle W. Cayce
Clerk
Roberto Ailon-Mendosa,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A077 490 980
Before Wiener, Dennis, and Haynes, Circuit Judges.
Per Curiam:*
Roberto Ailon-Mendosa, 1 a native and citizen of Guatemala, was
ordered removed in absentia in 1999. He moved to reopen his removal
proceedings in 2020 and now petitions for review of the order of the Board
*
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opinion should not be published and is not precedent except under the limited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.
1
The petitioner’s last name also appears in the record as Ailon-Mendoza.
Case: 20-61033 Document: 00516064115 Page: 2 Date Filed: 10/21/2021
No. 20-61033
of Immigration Appeals (BIA) dismissing his appeal from the denial of that
motion by the immigration judge (IJ).
We review the denial of a motion to reopen under a “highly
deferential” abuse-of-discretion standard. Singh v. Gonzales, 436 F.3d 484,
487 (5th Cir. 2006) (quoting Zhao v. Gonzales, 404 F.3d 295, 301 (5th Cir.
2005)). This standard requires us to affirm the denial “as long as it is not
capricious, without foundation in the evidence, or otherwise so irrational that
it is arbitrary rather than the result of any perceptible rational approach.”
Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009) (citing Singh, 436
F.3d at 487). Our review is generally confined to the BIA’s decision, even
though we may also consider the IJ’s decision insofar as it affected the
decision of the BIA. See Orellana-Monson v. Holder, 685 F.3d 511, 517 (5th
Cir. 2012) (citing Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009)).
Aliens seeking to reopen their removal proceedings may invoke the
immigration court’s regulatory power to reopen sua sponte or a statutory
right to reopen under 8 U.S.C. § 1229a(c)(7). Lugo-Resendez v. Lynch, 831
F.3d 337, 340–41 (5th Cir. 2016). Ailon-Mendosa did both. First, he claimed
that reopening was appropriate under § 1229a(c)(7)(C)(ii), a provision that
allows reopening at any time 2 based on evidence of changed country
conditions. Ailon-Mendosa introduced little evidence of changed conditions;
his submission primarily concerned an incident involving his father. The BIA
did not abuse its discretion in concluding that this was insufficient to
demonstrate the requisite showing of a material change of conditions in
Guatemala between the time Ailon-Mendosa was ordered removed in 1999
and the filing of his motion in 2020. See Nunez v. Sessions, 882 F.3d 499, 508–
2
A statutory motion to reopen must generally be filed within 90 days of the entry
of a removal order. See § 1229a(c)(7)(C)(i).
2
Case: 20-61033 Document: 00516064115 Page: 3 Date Filed: 10/21/2021
No. 20-61033
09 (5th Cir. 2018) (noting that “a petitioner bears a heavy burden to show
changed country conditions”); Ramos-Lopez v. Lynch, 823 F.3d 1024, 1026
(5th Cir. 2016); Singh, 436 F.3d at 487.
Ailon-Mendosa also contended that a sua sponte reopening was
warranted because he did not receive effective notice of his removal
proceedings in 1999. We lack jurisdiction to review denials of sua sponte
reopenings. Qorane v. Barr, 919 F.3d 904, 911–12 (5th Cir. 2019). Neither
may we consider whether the alleged lack of notice provided Ailon-Mendosa
a statutory right to reopen his case, because he did not raise that claim before
the BIA. See Omari v. Holder, 562 F.3d 314, 318–19, 322 (5th Cir. 2009).
Finally, to the extent Ailon-Mendosa attacks the underlying order of
removal, his failure to file a timely petition for review of that order deprives
us of jurisdiction to review it. See Stone v. INS, 514 U.S. 386, 405–06 (1995);
Mendias-Mendoza v. Sessions, 877 F.3d 223, 227 (5th Cir. 2017).
Ailon-Mendosa’s petition for review is DENIED in part and
DISMISSED in part for lack of jurisdiction.
3