Cortez-Ramirez v. Garland ( 2023 )

Case: 22-60502 Document: 00516731311 Page: 1 Date Filed: 04/28/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 22-60502 FILED
Summary Calendar April 28, 2023
____________ Lyle W. Cayce
Clerk
Melvin Alexis Cortez-Ramirez,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of
the Board of Immigration Appeals
Agency No. A206 773 085
______________________________
Before Smith, Southwick, and Douglas, Circuit Judges.
Per Curiam: *
Melvin Cortez-Ramirez, a native and citizen of El Salvador, petitions
for review of an order of the BIA denying his motion to reopen. Because
motions to reopen are “disfavored,” we review under “a highly deferential
abuse-of-discretion standard.” Gonzalez-Cantu v. Sessions, 866 F.3d 302,
304–05 (5th Cir. 2017). That standard protects a ruling that “is not capri-
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-60502 Document: 00516731311 Page: 2 Date Filed: 04/28/2023
No. 22-60502
cious, racially invidious, utterly without foundation in the evidence, or other-
wise so irrational that it is arbitrary rather than the result of any perceptible
rational approach.” Zhao v. Gonzales, 404 F.3d 295, 304 (5th Cir. 2005)
(citation omitted). Cortez-Ramirez has not satisfied the standard.
Insofar as Cortez-Ramirez maintains that his notice to appear
(“NTA”) was defective, and thus did not establish jurisdiction over his pro-
ceedings because the initial NTA did not include the time and date of his
hearing, that theory is unavailing. See Maniar v. Garland, 998 F.3d 235, 242
& n.2 (5th Cir. 2021). We lack jurisdiction to consider Cortez-Ramirez’s
challenge to the BIA’s decision not to exercise its discretion to reopen the
proceedings sua sponte. See Hernandez-Castillo v. Sessions, 875 F.3d 199, 206
(5th Cir. 2017). Because the BIA considered the merits of his arguments, we
need not consider his equitable-tolling argument. See INS v. Bagamasbad,
429 U.S. 24, 25 (1976) (per curiam). Finally, his due process argument fails
because he has not shown that the lack of a hearing date in the initial NTA
prejudiced him. See Arteaga-Ramirez v. Barr, 954 F.3d 812, 813 (5th Cir.
2020) (per curiam).
The petition for review is DENIED in part and DISMISSED in
part for want of jurisdiction.
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