United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
September 12, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-60983
Summary Calendar
XIOMARA MARTINA HERNANDEZ-SANTOS
Petitioner
v.
ALBERTO R GONZALES, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A28 589 963
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Xiomara Martina Hernandez-Santos (Hernandez) petitions this court to
review an order of the Board of Immigration Appeals (BIA) affirming the
immigration judge’s denial of her motion to reopen. Hernandez, a native and
citizen of Honduras, was arrested in June 1989 when she entered the United
States without inspection and was detained for approximately one month. While
she was in custody, Hernandez was served with an order to show cause which
did not set a hearing date.
*
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should not be published and is not precedent except under the limited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.
No. 06-60983
Hernandez was then released on her own recognizance and was granted
permission to travel to New York to live with her brother at an address provided
by Hernandez. The order by which Hernandez was released lists an address in
Rochester, New York. However, Hernandez’s brother lived not in Rochester but
in Port Chester, New York. Consequently, when notices of hearing were mailed
to the Rochester address, they were returned as undeliverable, and Hernandez
was ordered deported in absentia in November 1989.
In January 2006, Hernandez moved to reopen her deportation proceedings.
The immigration judge denied the motion to reopen, and the BIA affirmed. The
BIA determined that Hernandez’s failure, for many years, to inquire into the
status of her deportation proceedings and her delay in seeking reopening
reflected a lack of diligence. The BIA determined that a favorable exercise of
discretion was not warranted.
“The decision to grant or deny a motion to reopen is purely discretionary.”
Altamirano-Lopez v. Gonzales, 435 F.3d 547, 550-51 (5th Cir. 2006). We review
the denial of a motion to reopen “under a highly deferential abuse-of-discretion
standard.” Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005).
At the time of Hernandez’s deportation hearing in 1989, a deportation
hearing could be held in absentia if the alien was given a reasonable opportunity
to be present and without reasonable cause failed or refused to attend the
proceedings. See Williams-Igwonobe v. Gonzales, 437 F.3d 453, 455-56 & n.1 (5th
Cir. 2006). Hernandez argues that she has established reasonable cause for her
failure to appear given that she provided the correct address and did not receive
notice of her immigration hearing due to an unnoticed error.
Hernandez also contends that the BIA erred in its determination that a
favorable exercise of discretion was not warranted. In this regard, Hernandez
asserts that she thought that her immigration case was concluded and did not
know that she had any reason to inquire into the status of her deportation
proceedings or to be diligent about her case before the immigration court. She
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No. 06-60983
argues that the equities weigh in her favor, because, inter alia, she has an
approved labor certification and she is prima facie eligible for adjustment of
status, notwithstanding the order of deportation.
The record shows that Hernandez waited over 16 years to seek to reopen
her deportation proceedings, and that she did so, according to her filings, only
after becoming eligible for relief. Although Hernandez did not receive notice of
her deportation hearing, her arrest and detention, her receipt of an order to
show cause, and her release on her own recognizance indicated that deportation
proceedings against Hernandez were pending. Further, the record shows that
Hernandez failed to abide by the conditions of her release on her own
recognizance, which, inter alia, required Hernandez to report monthly to the
Buffalo District of the Immigration and Naturalization Service.
In view of the above, we conclude that the decision of the BIA was not
“‘capricious, racially invidious, utterly without foundation in the evidence, or
otherwise so irrational that it is arbitrary rather than the result of any
perceptible rational approach.’” Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir.
2006) (quoting Zhao, 404 F.3d at 304)). Accordingly, Hernandez’s petition for
review is DENIED.
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