Chhetri v. Garland

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 16, 2023
• Docket: 23-60184
• Status: Unpublished

Opinion

Case: 23-60184 Document: 00516932635 Page: 1 Date Filed: 10/16/2023

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ____________ FILED October 16, 2023 No. 23-60184 Lyle W. Cayce Summary Calendar Clerk ____________

Nitesh Chhetri,

Petitioner,

versus

Merrick Garland, U.S. Attorney General,

Respondent. ______________________________

Petition for Review of an Order of the Board of Immigration Appeals Agency No. A201 755 304 ______________________________

Before King, Haynes, and Graves, Circuit Judges. Per Curiam:* Nitesh Chhetri, a native and citizen of Nepal, petitions for review of an order of the Board of Immigration Appeals (BIA) denying his motion to reopen. Motions to reopen are “particularly disfavored.” Nguhlefeh Njilefac v. Garland, 992 F.3d 362, 365 n.3 (5th Cir. 2021). Consequently, we review the BIA’s denial of such motions “under a highly deferential abuse-of-

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 23-60184 Document: 00516932635 Page: 2 Date Filed: 10/16/2023

No. 23-60184

discretion standard.” Ovalles v. Rosen, 984 F.3d 1120, 1123 (5th Cir. 2021) (internal quotation marks and citation omitted). Under this standard, we will affirm unless the agency’s decision is “capricious, racially invidious, utterly without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach.” Nguhlefeh Njilefac, 992 F.3d at 365 (internal quotation marks and citation omitted). Chhetri has not met this standard. He shows no error in connection with the BIA’s determination that he had not shown that he was prejudiced by counsels’ alleged deficiencies and, concomitantly, shows no error in the BIA’s conclusion that he had not shown he was eligible for equitable tolling. See Eneugwu v. Garland, 54 F.4th 315, 319 (5th Cir. 2022); Diaz v. Sessions, 894 F.3d 222, 227-28 (5th Cir. 2018). Because he does not make the prejudice showing, we need not consider his arguments concerning diligence. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976). As the Respondent notes, Chhetri failed to exhaust his claims concerning translation issues and whether the attorney who represented him in his first appeal should have raised ineffective assistance issues. Because the Respondent raises exhaustion, we will enforce this claim-processing rule and decline to consider these issues. See Carreon v. Garland, 71 F.4th 247, 257 (5th Cir. 2023). The petition for review is DENIED.