Sandra Zapata-Hernandez v. Eric Holder, Jr. , 597 F. App'x 260 ( 2015 )

Case: 13-60436 Document: 00512967902 Page: 1 Date Filed: 03/13/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-60436
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
March 13, 2015
Lyle W. Cayce
Clerk
SANDRA ZAPATA-HERNANDEZ, also known as Sandra E. Zapata,
Petitioner,
versus
ERIC H. HOLDER, JR., U.S. Attorney General,
Respondent.
Petitions for Review of an Order of
the Board of Immigration Appeals
No. A 087 936 895
Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
Mexican national Sandra Zapata-Hernandez petitions for review of the
dismissal by the Board of Immigration Appeals (“BIA”) of her appeal of the
immigration judge’s ruling finding her to be ineligible for cancellation of
removal and voluntary departure and of the BIA’s denial of her motion to
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-60436 Document: 00512967902 Page: 2 Date Filed: 03/13/2015
No. 13-60436
reopen. For the reasons that follow, the petitions for review are denied.
For the first time, Zapata-Hernandez concedes that her 2007 Texas
guilty-plea conviction of tampering with a government record, a state jail fel-
ony for which she received three years of deferred-adjudication probation, was
both a conviction and a crime involving moral turpitude (“CIMT”). Her sole
theory is that, despite that conviction, she is eligible for relief in the form of
cancellation of removal because her conviction falls within the petty-offense
exception of 8 U.S.C. § 1182(a)(2)(A)(ii)(II).
Inasmuch as Zapata-Hernandez petitions for review of the BIA’s decision
dismissing her appeal and denying reopening based on the determination that
she was statutorily ineligible for cancellation of removal because her prior
offense was a CIMT conviction―a fact she now concedes―the petitions for
review are denied. Similarly, to the extent that she petitions for review of the
BIA’s denial of her request for relief in the form of voluntary departure, her
petition is also denied because she has failed to brief any challenge thereto.
See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
As she did for the first time in her motion to reopen, Zapata urges that
her offense falls within the petty-offense exception because she received
deferred-adjudication probation, was never adjudged guilty, and was never
ordered to serve imprisonment. She reasons that, without an adjudication of
guilt, she was never subject to imprisonment and thus that the petty offense
exception applies.
The BIA may reopen or reconsider any case in which it has previously
rendered a decision. 8 C.F.R. § 1003.2(a)−(c). A motion to reopen must “state
the new facts that will be proven at a hearing to be held if the motion is
granted, and shall be supported by affidavits or other evidentiary material.”
2
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No. 13-60436
8 U.S.C. § 1229a(c)(7)(B); accord § 1003.2(c)(1). Zapata-Hernandez’s motion to
reopen did not point to any new facts and was not supported by new evidence. 1
See § 1229a(c)(7)(B); § 1003.2(c)(1). Consequently, the BIA did not err in deter-
mining that the newly raised argument regarding the petty-offense exception
was not a proper basis for reopening.
The petitions for review are DENIED.
1 Zapata’s motion to reopen could not be construed as a motion for reconsideration,
instead of a motion to reopen, because it was not filed within 30 days of the BIA’s dismissal
of her appeal. See 8 U.S.C. § 1229a(c)(6)(C); 8 C.F.R. § 1003.2(b)(1), (2); see also Ramos-
Bonilla v. Mukasey, 543 F.3d 216, 219 n.3 (5th Cir. 2008).
3