Jose Alfredo MEJIA-URBINA, Petitioner v. Jefferson B. SESSIONS, III, U.S. Attorney General, Respondent
No. 16-60819
United States Court of Appeals, Fifth Circuit
Filed February 20, 2018
469 F.3d 295
Before BARKSDALE, PRADO, and OWEN, Circuit Judges.
Summary Calendar
Linda Y. Cheng, Trial Attorney, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent
PER CURIAM:*
Jose Alfredo Mejia-Urbina, a native and citizen of El Salvador, seeks review of the Board of Immigration Appeals’ (BIA) dismissal of his appeal from an immigration judge‘s denial of his motion to reopen his in absentia removal proceeding. He contends the in absentia removal order in 2004 was improper because he lacked notice of the hearing.
Denial of a motion to reopen is reviewed “under a highly deferential abuse-of-discretion standard“. Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). The BIA‘s decision will be upheld “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 v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006)). Factual findings are reviewed for substantial evidence, meaning they will not be overturned “unless the evidence compels a contrary conclusion“. Id. (citing Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994)).
Mejia requested reopening his proceedings based on lack of notice.
Nonetheless, the record is devoid of evidence that indicates he attempted to notify the immigration court the address contained in the NTA was incorrect. Moreover, as support for his claim of governmental error, he relies only on his counsel‘s brief to the BIA, in which counsel stated an immigration officer wrote Mejia‘s address incorrectly. It goes without saying that counsel‘s unsupported statements are not sufficient. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6, 104 S. Ct. 584, 78 L.Ed.2d 401 (1984).
In sum, Mejia did not comply with his obligation to keep his address current, and his failure to do so precludes his obtaining relief. E.g., Gomez-Palacios, 560 F.3d at 360-61 (affirming BIA‘s denial of appeal from in absentia removal when alien failed to comply with obligation to provide current address information). The BIA‘s ruling, therefore, was not an abuse of discretion. E.g., id. at 358.
DENIED.
German I. AVILA, also known as German Avila, also known as Peewee, Petitioner v. Jefferson B. SESSIONS, III, U.S. Attorney General, Respondent
No. 16-60844
United States Court of Appeals, Fifth Circuit
Filed February 20, 2018
Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
Summary Calendar; German I. Avila, Pro Se; Kathryn M. McKinney, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent
German I. Avila has petitioned for review of the decision of the Board of Immigration Appeals (BIA) dismissing his appeal from the decision of the Immigration Judge (IJ) denying his applications for asylum, withholding of removal, and for relief under the Convention Against Torture (CAT).
Avila does not challenge the IJ‘s determination that he failed to establish a right to CAT relief. Thus, that question is abandoned. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
Although Avila does not dispute that his asylum application was untimely, he contends that the untimeliness resulted from ineffective assistance of counsel. Because Avila failed to exhaust his claim of ineffective assistance of counsel, we lack jurisdiction to consider it. See Claudio v. Holder, 601 F.3d 316, 318 (5th Cir. 2010). The petition for review is DISMISSED IN PART.
Avila asserts that the BIA erred in denying his request for withholding of removal because he had not shown a clear probability that his life or freedom would be threatened on account of membership in a particular social group consisting of young Salvadoran males who spent the majority of their lives in the United States and are perceived to be gang members by the Salvadoran government because of their extensive tattoos. The BIA‘s determination was supported by substantial evi-