Reylla Ferraz-Da Silva v. Eric Holder, Jr. , 523 F. App'x 274 ( 2013 )

Case: 12-60538 Document: 00512274070 Page: 1 Date Filed: 06/14/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 14, 2013
No. 12-60538
Summary Calendar Lyle W. Cayce
Clerk
REYLLA DENIS FERRAZ-DA SILVA,
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. A200 025 831
Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
Reylla Denis Ferraz-Da Silva, a native and citizen of Brazil, petitions this
court for review of an order of the Board of Immigration Appeals (BIA)
dismissing her appeal of an immigration judge’s (IJ) denial of her motion to
reopen removal proceedings.
In 2005, Ferraz-Da Silva was ordered removed in absentia when she did
not appear for her removal hearing as ordered in the notice to appear that was
personally served on her the day after she entered the United States. She
argues that the BIA should have permitted her to reopen her case on the ground
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-60538
that the Due Process Clause required the Government to provide her with oral
notice in her native language of Portugese of the immigration hearing and the
consequences of failing to appear. We review her due process challenge de novo.
Heaven v. Gonzales, 473 F.3d 167, 171 (5th Cir. 2006). Aliens are entitled to due
process during removal proceedings including notice that is “‘reasonably
calculated, under all the circumstances, to apprise [them] of the pendency of the
action and afford them an opportunity to present their objections.’” Lopez-Dubon
v. Holder, 609 F.3d 642, 646 (5th Cir. 2010) (quoting Mullane v. Cent. Hanover
Bank & Trust, 339 U.S. 306, 314 (1950)).
Ferraz-Da Silva concedes that the notice that she received complied with
the relevant statute and that immigration officials were not statutorily required
to provide oral notice in her native language of her hearing and the
consequences of failing to appear. See 8 U.S.C. § 1229(a)(1). She cites no
authority to support her contention that due process nonetheless required this
form of notice. In any event, the BIA determined that officials notified Ferraz-
Da Silva in Portugese of the date of her hearing and the consequences of failing
to appear. This factual finding was based on substantial evidence, including the
statements in the notice to appear and elsewhere in Ferraz-Da Silva’s
immigration file that this information was conveyed to her in Portugese. See
Gomez-Palacios, 560 F.3d 354, 358 (5th Cir. 2009). Thus, she has not shown that
her notice ran afoul of due process.
She also contends that she was denied due process because she was not
afforded an evidentiary hearing before the IJ decided her motion. However, she
cannot establish a due process violation because she did not request a hearing
and because the decision whether to grant a motion to reopen is purely
discretionary, and “the denial of discretionary relief does not rise to the level of
a constitutional violation even if the moving party had been eligible for it.”
Altamirano-Lopez v. Gonzales, 435 F.3d 547, 550 (5th Cir. 2006) (internal
quotation marks, citations, and brackets omitted).
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No. 12-60538
Accordingly the petition for review is DENIED.
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