Lui Li v. Eric Holder, Jr. , 402 F. App'x 923 ( 2010 )

Case: 09-60960 Document: 00511300774 Page: 1 Date Filed: 11/22/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 22, 2010
No. 09-60960
Summary Calendar Lyle W. Cayce
Clerk
LUI LI,
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. A098 556 824
Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
Lui Li, who a native and citizen of the People’s Republic of China, petitions
for review of an order of the Board of Immigration Appeals (BIA) affirming the
immigration judge’s (IJ) order denying her motion to reopen removal
proceedings. This court reviews the denial of a motion to reopen “under a highly
deferential abuse-of-discretion standard.” Maknojiya v. Gonzales, 432 F.3d 588,
589 (5th Cir. 2005) (internal quotation marks and citation omitted). Factual
findings are reviewed “under the substantial-evidence test, meaning that this
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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No. 09-60960
court may not overturn the IJ’s factual findings unless the evidence compels a
contrary conclusion.” Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir.
2009).
Li was ordered removed in absentia when she failed to appear for a
hearing in April 2005. In August 2008, Li sought to reopen the removal
proceedings on the grounds that she had not received notice of the hearing date
and time. Thus, she has missed the 180-day deadline for filing a motion to
reopen based upon “extraordinary circumstances,” but her application based
upon “non-receipt of notice” is timely. She acknowledges that she had not
provided a mailing address to authorities, but Li argues that it was due to her
circumstances rather than neglect on her part.
In her appeal to this court, Li raises arguments that the Notice to Appear
that she received was flawed and legally insufficient and that the IJ should have
applied a “reasonable cause” standard in ruling on her motion to reopen the
removal proceedings conducted in absentia. Li did not raise these claims before
the BIA. Therefore, these claims are unexhausted, this court lacks jurisdiction
to review them, and they must be dismissed. See Townsend v. INS, 799 F.2d
179, 181 (5th Cir.1986).
The IJ’s finding that Li failed to provide authorities with a current mailing
address after receiving a Notice to Appear explaining the address requirements
and being orally notified in Chinese of the consequences of failing to appear is
supported by substantial evidence in the record. See Gomez-Palacios, 560 F.3d
at 358. An alien is required to provide the Attorney General, in writing, an
address and phone number where she can be contacted respecting the removal
proceedings. 8 U.S.C. § 1229(a)(1)(F). Li’s failure to provide a current address
precludes her from obtaining rescission of the in absentia order of removal. See
8 U.S.C. § 1229a(b)(5)(C)(ii); Gomez-Palacios, 560 F.3d at 360-61. Li did not
show that the BIA abused its discretion in affirming the IJ’s denial of the
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No. 09-60960
motion to reopen the removal proceedings. See Maknojiya, 432 F.3d at 589. The
petition for review is DISMISSED in part and DENIED as to the remainder.
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