Flores-Ordones v. Holder , 348 F. App'x 12 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 5, 2009
No. 08-60940
Summary Calendar Charles R. Fulbruge III
Clerk
ABEL FLORES-ORDONES,
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 027 333
Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Abel Flores-Ordones petitions this court for review of the Board of
Immigration Appeals’ (BIA) decision dismissing his appeal from the immigration
judge’s (IJ) denial of his motion to reopen and to rescind the in absentia order of
removal. Flores-Ordones does not challenge the BIA’s finding that the notice of
the removal hearing was proper because Flores-Ordones was personally served
with the notice to appear, which apprised him of the consequences of his failure
to appear and the necessity for him to provide a change of address form to the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-60940
court, that Flores-Ordones failed to provide a new address to the immigration
court when he left Texas to move to California, and that the notice of the
removal hearing was properly mailed to the Texas address Flores-Ordones
provided to the Government. Accordingly, he has abandoned these issues. See
United States v. Charles, 469 F.3d 402, 408 (5th Cir. 2006). Flores-Ordones has
also abandoned by failing to adequately brief any argument regarding the
service of his notice of hearing. Id. To the extent Flores-Ordones attempts to
argue that the failure to receive notice of a removal hearing always entitles him
to a rescission of that order, such an argument is foreclosed by Gomez-Palacios
v. Holder, 560 F.3d 354 (5th Cir. 2007).
Flores-Ordones challenges the BIA’s finding that he failed to support his
claim that illness prevented him from attending his removal hearing. However,
as the BIA concluded, the record does not contain any evidence corroborating
Flores-Ordones claim of illness.
Flores-Ordones also argues that the Government sent him mixed signals
regarding whether the Government would agree not to oppose his motion to
reopen. However, he does not challenge the BIA’s finding that the record does
not contain any evidence of an agreement by the Government not to oppose the
motion.
In reviewing the denial of a motion to reopen, this court applies a highly
deferential abuse-of-discretion standard, regardless of the basis of the alien’s
request for relief. Lara v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000).
Accordingly, this court must affirm the BIA’s decision as long as it is not
capricious, without foundation in the evidence, or otherwise so irrational that it
is arbitrary rather than the result of any perceptible rational approach. See
Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006).
While questions of law are reviewed de novo, this court accords deference
to the BIA’s interpretation of immigration statutes unless the record reveals
compelling evidence that the BIA’s interpretation is incorrect. Mikhael v. INS,
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No. 08-60940
115 F.3d 299, 302 (5th Cir. 1997). The BIA’s factual findings are reviewed under
the substantial-evidence test, meaning that this court may not overturn the
BIA’s factual findings unless the evidence compels a contrary conclusion. Chun
v. INS, 40 F.3d 76, 78 (5th Cir. 1994). This court reviews the order of the BIA
and will consider the underlying decision of the IJ only if it influenced the
determination of the BIA. See Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 348
(5th Cir. 2002).
Flores-Ordones has not established that the BIA abused its discretion by
denying his appeal. Accordingly, his petition for review is DENIED. Flores-
Ordones’s motion to remand is also DENIED.
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