IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 2, 2009
No. 08-60165
Summary Calendar Charles R. Fulbruge III
Clerk
WILBER OMAR MENDOZA-HERNANDEZ
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. A70 003 759
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Wilber Omar Mendoza-Hernandez, a native and citizen of El Salvador,
seeks review of the Board of Immigration Appeals’ (BIA) order affirming the
denial by the immigration judge (IJ) of Mendoza’s August 2006 motion to reopen
his deportation proceeding. Mendoza was ordered deported in absentia in
February 1996, after he failed to appear for his deportation hearing.
*
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not be published and is not precedent except under the limited circumstances set forth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. 08-60165
Because Mendoza’s deportation proceeding was instituted before the
effective date of the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA), 110 Stat. 3009-546 (1996), his motion to reopen is governed
by the law predating IIRIRA, particularly 8 U.S.C. § 1252b (repealed 1996). See
Assaad v. Ashcroft, 378 F.3d 471, 473-74 n.1 (5th Cir. 2004); DeLeon-Holguin v.
Ashcroft, 253 F.3d 811, 814-15 (5th Cir. 2001).
Where, as here, the IJ’s decision affects the BIA’s decision, we may review
both. See Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996). Denials
of motions to reopen are reviewed under “a highly deferential abuse-of-discretion
standard”. Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). The BIA’s
decision must stand as long as it “is 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).
Mendoza claims: he did not receive notice of his deportation hearing; the
person he retained to represent him failed to provide the Immigration and
Naturalization Service (INS) with an address where notice of the deportation
hearing could be sent; this failure constituted ineffective assistance of counsel,
which qualified as an exceptional circumstance and a basis for reopening his
proceeding; and his counsel’s ineffectiveness warranted application of the
doctrine of equitable tolling of the temporal limitation on his motion to reopen.
Mendoza’s contentions are without merit.
The order to show cause (OSC) issued to Mendoza in November 1995 met
all statutory requirements. Additionally, the BIA’s factual finding that Mendoza
understood the OSC and the consequences of not providing an address is
supported by substantial evidence. See Arif v. Mukasey, 509 F.3d 677, 679 (5th
Cir. 2007).
When Mendoza’s proceeding commenced, a deportation order entered in
absentia was subject to rescission on a motion to reopen filed at any time “if the
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No. 08-60165
alien demonstrate[d] that the alien did not receive notice in accordance with
subsection (a)(2) of this section”. 8 U.S.C. § 1252b(c)(3)(B) (repealed); see also 8
C.F.R. § 1003.23(b)(4)(iii)(A)(2). The statute, however, specifically obviated the
necessity of notice of the time and place of a deportation proceeding if the alien
failed to provide a written record of an address where he might be contacted.
See 8 U.S.C. §§ 1252b(c)(2), (3)(B) (both repealed). Accordingly, as Mendoza did
not provide an address, he is not entitled to relief under 8 U.S.C.
§ 1252b(c)(3)(B). See United States v. Estrada-Trochez, 66 F.3d 733, 736 (5th
Cir. 1995) (stating that the “ultimate fault” lay with the petitioner for failing to
comply with a law that required him to provide an address that was “essential
to the administration of the INS”).
When Mendoza’s proceeding commenced, an alien could also move to
reopen an in abstentia deportation order within 180 days after its date on the
basis “that the failure to appear was because of exceptional circumstances”. 8
U.S.C. § 1252b(c)(3)(B)(repealed); see also 8 C.F.R. § 1003.23(b)(4)(iii)(A)(1)
(“exceptional circumstances beyond the control of the alien”). To the extent that
Mendoza attempts to demonstrate that his claimed lack of effective counsel was
an exceptional circumstance within the meaning of 8 U.S.C. § 1252b(c)(3)(A), the
effort fails because his motion was not filed within 180 days of the February
1996 deportation order.
Nor can Mendoza prevail on an equitable-tolling claim. See Ramos-Bonilla
v. Mukasey, 543 F.3d 216, 219-20 (5th Cir. 2008). “[A] request for equitable
tolling of a time- or number-barred motion to reopen on the basis of ineffective
assistance of counsel is” essentially a contention that the BIA, or the IJ, should
have sua sponte reopened the proceeding based upon the doctrine of equitable
tolling. Id. at 220. But we are without jurisdiction to review a deportation
proceeding reopened by the IJ or the BIA sua sponte because we have “no legal
standard by which to judge the IJ’s ruling”. Id.
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No. 08-60165
The BIA did not abuse its discretion in adopting and affirming the IJ’s
denying Mendoza’s motion to reopen. See Zhao, 404 F.3d at 303. The petition
for review is
DENIED.
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