Cortez-Ramirez v. Garland

Opinion

Case: 22-60502 Document: 00516731311 Page: 1 Date Filed: 04/28/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 22-60502 FILED Summary Calendar April 28, 2023 ____________ Lyle W. Cayce Clerk Melvin Alexis Cortez-Ramirez,

Petitioner,

versus

Merrick Garland, U.S. Attorney General,

Respondent. ______________________________

Petition for Review of an Order of the Board of Immigration Appeals Agency No. A206 773 085 ______________________________

Before Smith, Southwick, and Douglas, Circuit Judges. Per Curiam: * Melvin Cortez-Ramirez, a native and citizen of El Salvador, petitions for review of an order of the BIA denying his motion to reopen. Because motions to reopen are “disfavored,” we review under “a highly deferential abuse-of-discretion standard.” Gonzalez-Cantu v. Sessions, 866 F.3d 302, 304–05 (5th Cir. 2017). That standard protects a ruling that “is not capri-

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 22-60502 Document: 00516731311 Page: 2 Date Filed: 04/28/2023

No. 22-60502

cious, racially invidious, utterly without foundation in the evidence, or other- wise so irrational that it is arbitrary rather than the result of any perceptible rational approach.” Zhao v. Gonzales, 404 F.3d 295, 304 (5th Cir. 2005) (citation omitted). Cortez-Ramirez has not satisfied the standard. Insofar as Cortez-Ramirez maintains that his notice to appear (“NTA”) was defective, and thus did not establish jurisdiction over his pro- ceedings because the initial NTA did not include the time and date of his hearing, that theory is unavailing. See Maniar v. Garland, 998 F.3d 235, 242 & n.2 (5th Cir. 2021). We lack jurisdiction to consider Cortez-Ramirez’s challenge to the BIA’s decision not to exercise its discretion to reopen the proceedings sua sponte. See Hernandez-Castillo v. Sessions, 875 F.3d 199, 206 (5th Cir. 2017). Because the BIA considered the merits of his arguments, we need not consider his equitable-tolling argument. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam). Finally, his due process argument fails because he has not shown that the lack of a hearing date in the initial NTA prejudiced him. See Arteaga-Ramirez v. Barr, 954 F.3d 812, 813 (5th Cir. 2020) (per curiam). The petition for review is DENIED in part and DISMISSED in part for want of jurisdiction.