Case: 11-60006 Document: 00511647444 Page: 1 Date Filed: 10/27/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 27, 2011
No. 11-60006
Summary Calendar Lyle W. Cayce
Clerk
MAHESH C. JANI,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A074 585 661
Before REAVLEY, SMITH and PRADO, Circuit Judges.
PER CURIAM:*
Mahesh C. Jani, a native and citizen of India, petitions this court for
review of the decision of the Board of Immigration Appeals (BIA) denying his
motion to reopen his January 1996 deportation proceedings held in absentia.
Motions to reopen deportation proceedings are not favored. INS v.
Doherty, 502 U.S. 314, 323 (1992). This court reviews the BIA’s 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). That discretion will not be
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 11-60006 Document: 00511647444 Page: 2 Date Filed: 10/27/2011
No. 11-60006
disturbed unless it is arbitrary, capricious, racially invidious, or utterly without
evidentiary foundation. Mai v. Gonzales, 473 F.3d 162, 164 (5th Cir. 2006). The
BIA’s factual findings are reviewed under the substantial evidence test, under
which this court may not overturn the BIA’s factual findings unless the evidence
compels a contrary conclusion. Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994).
Although Jani argues that the BIA erred by finding that the record did not
evidence his inability to understand the notice of his deportation proceeding
written in English, he cites no evidence compelling a contrary conclusion. See
id. Contrary to his contention, the record contains no affidavit supporting his
claim that the interpreter at his bond hearing misinformed him that his case
would be transferred to New York, and counsel’s assertions regarding this
alleged misinformation do not constitute evidence. See INS v. Phinpathya,
464 U.S. 183, 188 n.6 (1984). Nor do counsel’s unsupported representations
regarding the practices of the Immigration and Naturalization Service in 1995
constitute evidence that the case should have been transferred to New York as
a matter of course following Jani’s release on bond. See id. Jani fails to show
that the BIA abused its discretion by denying his motion to reopen. See Zhao,
404 F.3d at 303.
Jani’s petition for review is DENIED.
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