Case: 12-60284 Document: 00512242657 Page: 1 Date Filed: 05/15/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 15, 2013
No. 12-60284
Summary Calendar Lyle W. Cayce
Clerk
NELSON JAVIER GARCIA-RIVERA,
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. A099 672 593
Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
In June 2006, an immigration judge (IJ) entered an in absentia order
removing Nelson Javier Garcia-Rivera to his native El Salvador. More than five
years later, Garcia-Rivera moved to rescind the removal order and reopen his
immigration proceedings. The IJ denied the motion, and the Board of
Immigration Appeals (BIA) dismissed Garcia-Rivera’s appeal and denied his
motion to remand his case to the IJ. Garcia-Rivera now petitions for review of
the BIA’s decision.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-60284 Document: 00512242657 Page: 2 Date Filed: 05/15/2013
No. 12-60284
In his petition for review, Garcia-Rivera asserts that the 180-day deadline
for filing a motion to reopen pursuant to 8 U.S.C. § 1229a(b)(5)(C)(i) should be
equitably tolled based on his assertions that he received ineffective assistance
of counsel and that he had been defrauded by a California notary. In this circuit,
such an argument is construed as a challenge to the BIA’s refusal to exercise its
discretion to sua sponte reopen the proceeding under 8 C.F.R. § 1003.2(a). See
Ramos-Bonilla v. Mukasey, 543 F.3d 216, 219-20 (5th Cir. 2008). Accordingly,
we lack jurisdiction to review this purely discretionary decision. Id.
Garcia-Rivera also reiterates his contention that he was not properly
served with the notice to appear (NTA) because he lacked the mental stability
to comprehend the contents of the NTA. The record contains evidence that
Garcia-Rivera received both oral and written notice of his immigration hearing
and the consequences of failing to appear for that hearing as required by 8
U.S.C. § 1229(a)(1). There is also evidence that the oral notice was given in
Spanish and that Garcia-Rivera stated to the Border Patrol agent that he
understood the notice. Garcia-Rivera has not shown that the BIA abused its
discretion in determining that reopening was not warranted under
§ 1229a(b)(5)(C)(ii). See Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir.
2009).
The petition filed by Garcia-Rivera does not include any challenge to the
BIA’s denial of his motion to remand, its determination that his motion to reopen
was untimely under 8 U.S.C. § 1229a(b)(5)(C)(i), or its determination that he had
not shown a change in country conditions that warranted reopening under
§ 1229a(c)(7)(C)(ii). He has thus waived those issues. See Thuri v. Ashcroft, 380
F.3d 788, 793 (5th Cir. 2004).
PETITION FOR REVIEW DISMISSED IN PART AND DENIED IN
PART.
2