Case: 20-61193 Document: 00516543208 Page: 1 Date Filed: 11/14/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit No. 20-61193 FILED Summary Calendar November 14, 2022 Lyle W. Cayce Clerk Mari Sonia Portillo-Aceituno, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals Agency No. A078 959 625 Before King, Higginson, and Willett, Circuit Judges. Per Curiam:* Mari Sonia Portillo-Aceituno, a native and citizen of Honduras, petitions for review of an order by the Board of Immigration Appeals (BIA) dismissing her appeal from the Immigration Judge’s (IJ) denial of her motion to reopen proceedings. On September 21, 2002, the U.S. Department of * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 20-61193 Document: 00516543208 Page: 2 Date Filed: 11/14/2022 No. 20-61193 Justice (DOJ) Immigration and Naturalization Service personally served Portillo-Aceituno with a Notice to Appear (NTA) that contained the place, but not the date or time of her hearing. A Form I-830, dated September 24, 2002, noted that Portillo-Aceituno reported her address would be “c/o Gloria Argentina PORTILLO-Aceituno; aka: Maria Vitalina PORTILLO- Melendez (Cousin) 2434 Prospect Ave. Bronx, NY 10458” upon her release from custody. A notice of hearing was mailed to this address. The notice was returned to the DOJ Executive Office for Immigration Review as “attempted not known[.]” On February 25, 2003, Portillo-Aceituno failed to appear and the IJ entered an in absentia order of removal against her. This court reviews “the BIA’s denial of a motion to reopen or to reconsider under a highly deferential abuse-of-discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). The BIA “abuses its discretion when it issues a decision that is capricious, irrational, utterly without foundation in the evidence, based on legally erroneous interpretations of statutes or regulations, or based on unexplained departures from regulations or established policies.” Barrios-Cantarero v. Holder, 772 F.3d 1019, 1021 (5th Cir. 2014). We review the BIA’s rulings of law de novo and its findings of fact for substantial evidence. Id. Under the substantial evidence standard, we “may not overturn the BIA’s factual findings unless the evidence compels a contrary conclusion.” Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009). Portillo-Aceituno argues that the BIA abused its discretion in affirming the IJ’s denial of her motion to reopen on the basis that she was properly served with her NTA. 1 She asserts that her older cousin, who 1 On September 27, 2021, after the parties submitted briefing in this case, this court issued Rodriguez v. Garland, 15 F.4th 351, 354-56 (5th Cir. 2021), which held that an initial NTA lacking a date, time, and place of a removal hearing does not meet the relevant 2 Case: 20-61193 Document: 00516543208 Page: 3 Date Filed: 11/14/2022 No. 20-61193 traveled to the United …
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