Sanchez-Hernandez v. Garland ( 2021 )

Case: 20-60007 Document: 00515789401 Page: 1 Date Filed: 03/22/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 22, 2021
No. 20-60007 Lyle W. Cayce
Summary Calendar Clerk
Juan Carlos Sanchez-Hernandez,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A099 479 984
Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
Juan Carlos Sanchez-Hernandez, a native and citizen of El Salvador,
petitions for review of a decision by the Board of Immigration Appeals (BIA)
dismissing his appeal without opinion from the denial by an Immigration
Judge (IJ) of his motion to reopen. He contends that he did not receive notice
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-60007 Document: 00515789401 Page: 2 Date Filed: 03/22/2021
No. 20-60007
of his removal hearing, and thus he argues that the IJ abused its discretion by
denying his request to rescind its in absentia removal order. We review the
denial of a motion to reopen under a highly deferential abuse-of-discretion
standard. Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005).
As an initial matter, we must consider whether we have jurisdiction,
sua sponte if necessary. See Sattani v. Holder, 749 F.3d 368, 370 (5th Cir.
2014); Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). Sanchez-
Hernandez contends that the BIA did not apply the correct standard of
review. Generally, a motion for reconsideration is not required to satisfy the
exhaustion requirements of § 1252(d). Omari v. Holder, 562 F.3d 314, 320
(5th Cir. 2009). However, “allegations of BIA error must first be brought to
the BIA in a motion for reconsideration” to be considered exhausted. Id. If
the petitioner challenges the BIA’s resolution of an issue previously raised
before the BIA, he need not file a motion for reconsideration. Id. On the other
hand, “where the BIA’s decision itself results in a new issue,” such as an
issue regarding the BIA’s “act of decisionmaking,” and where “the BIA has
an available and adequate means for addressing that issue, a party must first
bring it to the BIA's attention through a motion for reconsideration.” Id.
Moreover, we lack jurisdiction to review the IJ’s decision whether to exercise
his sua sponte authority to reopen removal proceedings because no
meaningful standard exists by which to judge that decision. See Hernandez-
Castillo v. Sessions, 875 F.3d 199, 206-07 & n.3 (5th Cir. 2017).
Further, the IJ did not abuse its discretion by denying the motion to
reopen where the evidence showed that Sanchez-Hernandez failed to provide
an address where he could “be contacted respecting [removal] proceedings.”
8 U.S.C. § 1229(a)(1)(F)(i); see § 1229(a)(2)(B); 8 U.S.C. § 1229a(b)(5)(B);
Zhao, 404 F.3d at 303. Sanchez-Hernandez’s due process claim fails because
he did not provide the immigration court with an address at which he could
be served with notice of the hearing. United States v. Estrada-Trochez, 66 F.3d
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No. 20-60007
733, 736 (5th Cir. 1995). To the extent that he argues that the notice to appear
was defective because it did not include the date and time of the hearing,
Sanchez-Hernandez’s argument is foreclosed by Pierre-Paul v. Barr, 930 F.3d
684, 688-90 (5th Cir. 2019), cert. denied, 140 S. Ct. 2718 (2020).
Accordingly, Sanchez-Hernandez’s petition for review is DENIED
in part and DISMISSED in part for lack of jurisdiction.
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