Case: 20-60228 Document: 00516075836 Page: 1 Date Filed: 11/01/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED November 1, 2021 No. 20-60228 Lyle W. Cayce Summary Calendar Clerk Luis Mauricio Martinez, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A098 881 816 Before Wiener, Dennis, and Haynes, Circuit Judges. Per Curiam:* Luis Mauricio Martinez, a native and citizen of Honduras, petitions for review of the dismissal by the Board of Immigration Appeals (BIA) of his appeal of the denial of his motion to reopen by the immigration judge (IJ). We review the final decision of the BIA and consider the IJ’s opinion where, * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 20-60228 Document: 00516075836 Page: 2 Date Filed: 11/01/2021 No. 20-60228 as here, it affected the BIA’s decision. Nunez v. Sessions, 882 F.3d 499, 505 (5th Cir. 2018). The denial of a motion to reopen is reviewed for abuse of discretion. Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009). We “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.” Id. It is undisputed that Martinez’s motion to reopen was untimely as it was filed in 2019, over a decade after the IJ’s 2005 in absentia removal order. See 8 U.S.C. § 1229a(c)(7)(C)(i). The BIA did not abuse its discretion in finding that Martinez received proper notice because he was personally served with a notice to appear that reflected the time, date, and location of his hearing. See Gomez-Palacios, 560 F.3d at 358; § 1229a(b)(5)(A). Martinez argues that “he believed that another notice would arrive in the mail indicating his actual hearing date,” and states that the “BIA has rescinded orders of removal based on misinterpretation or misremembering hearing dates” before, citing to a serios of unpublished BIA decisions. However, even if those decisions were precedential, they are distinguishable. Those cases involved an interpreter relaying incorrect information or lost or misplaced notices of hearing. Martinez cannot present similar exceptional circumstances which would warrant reopening. To the extent the BIA determined that Martinez also failed to establish exceptional circumstances warranting the reopening of his removal proceedings, see § 1229a(b)(5)(C)(i), Martinez has abandoned any challenge to that finding by failing to brief the issue before this court, see Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003). Further, we lack jurisdiction to review the district court’s refusal to sua sponte reopen Martinez’s removal 2 Case: 20-60228 Document: 00516075836 Page: 3 Date Filed: 11/01/2021 No. 20-60228 proceedings. See Gonzalez-Cantu v. Sessions, 866 F.3d 302, 306 (5th Cir. 2017). Martinez argues that the normal time limit for …
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