Edgar Garcia-Diaz v. Jefferson Sessions, III

Case: 17-60218 Document: 00514453382 Page: 1 Date Filed: 05/01/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals No. 17-60218 Fifth Circuit FILED Summary Calendar May 1, 2018 Lyle W. Cayce EDGAR GARCIA-DIAZ, Clerk Petitioner v. JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL, Respondent Petition for Review of an Order of the Board of Immigration Appeals BIA No. A200 224 381 Before KING, ELROD, and HIGGINSON, Circuit Judges. PER CURIAM: * Edgar Garcia-Diaz, a native and citizen of Mexico, seeks review of the decision of the Board of Immigration Appeals (“BIA”) affirming the order of the immigration judge (“IJ”) denying his motion to reopen removal proceedings. Garcia first petitioned for review in this court in 2016 after the BIA affirmed the IJ’s denial of adjustment of status but remanded for consideration of his request for voluntary departure. We dismissed that appeal for lack of subject- * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Case: 17-60218 Document: 00514453382 Page: 2 Date Filed: 05/01/2018 No. 17-60218 matter jurisdiction, on the ground that there was no reviewable final order of removal in light of the BIA’s remand. Garcia then appeared before the IJ to withdraw his request for voluntary departure, resulting in a final order of removal. However, rather than petitioning for review of that final order, Garcia filed a motion in this court to set aside the order dismissing his premature petition for review. We denied that motion. Several months later, Garcia filed a motion before the IJ to reopen his removal proceedings, arguing that our intervening decision in Holguin- Mendoza v. Lynch, 835 F.3d 508 (5th Cir. 2016), suggested that we should not have dismissed his petition or denied his motion to set aside that dismissal. The IJ denied that motion, reasoning that Garcia failed to present “new material facts or evidence that was previously unavailable, as required by statute and regulation. See 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R. § 1003.23(b)(3). The IJ also declined to reopen the case sua sponte. The BIA affirmed, and Garcia timely petitioned for review. 1 We review the denial of a motion to reopen under a “highly deferential abuse-of-discretion standard.” Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009). The agency decision will stand “so long as it is not 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.” Zhao v. Gonzales, 404 F.3d 295, 304 (5th Cir. 2005) (quoting Pritchett v. I.N.S., 993 F.2d 80, 83 (5th Cir. 1993)). Although the BIA did not expressly adopt the IJ’s decision in this matter, it favorably cited the IJ’s reasoning and added minimal additional reasoning; thus, we review both decisions. See Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007). 1Garcia seeks review of ...

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