Case: 19-60319 Document: 00515494002 Page: 1 Date Filed: 07/17/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 19-60319 United States Court of Appeals Summary Calendar Fifth Circuit FILED July 17, 2020 ROBERT NOEL FIGUEROA-DIAZ, Lyle W. Cayce Clerk Petitioner v. WILLIAM P. BARR, U. S. ATTORNEY GENERAL, Respondent Petition for Review of an Order of the Board of Immigration Appeals BIA No. A200 133 080 Before WIENER, HAYNES, and COSTA, Circuit Judges. PER CURIAM: * Robert Noel Figueroa-Diaz, a native and citizen of Honduras, entered the United States in September of 2005. He filed an application for asylum and withholding of removal under the Convention Against Torture. In September of 2006, an immigration judge denied his application and ordered him removed. Over a decade later, Figueroa-Diaz filed a motion to reopen his * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 19-60319 Document: 00515494002 Page: 2 Date Filed: 07/17/2020 No. 19-60319 immigration proceedings, which the Board of Immigration Appeals (BIA) denied. He now seeks review of the BIA’s denial of his motion to reopen. Relying on Pereira v. Sessions, 138 S. Ct. 2105 (2018), Figueroa-Diaz contends that his notice to appear (NTA) did not end his continuous presence in the United States or vest the immigration court with jurisdiction because it did not specify the date and time of his removal hearing. He argues that the BIA abused its discretion by concluding that the deficient NTA conferred jurisdiction on the immigration court, failing to fully consider and determine his eligibility for cancellation of removal, rejecting his due process argument, and declining to reopen proceedings sua sponte. He also argues that the BIA abused its discretion by finding his motion untimely without considering his meritorious arguments for equitable tolling. Generally, our jurisdiction to review final orders of removal “encompasses review of decisions refusing to reopen or reconsider such.” Mata v. Lynch, 135 S. Ct. 2150, 2154 (2015). To the extent we possess jurisdiction, we review the denial of a motion to reopen under “a highly deferential abuse- of-discretion standard.” Barrios-Cantarero v. Holder, 772 F.3d 1019, 1021 (5th Cir. 2014) (internal quotation marks and citation omitted). The BIA may deny a motion to reopen if the alien fails to make a prima facie showing that he is entitled to the relief requested. INS v. Abudu, 485 U.S. 94, 104-05 (1988). An alien is statutorily eligible to file a motion for cancellation of removal if, among other things, the alien “has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application.” 8 U.S.C. § 1229b(b)(1)(A). Under § 1229b(d)(1), known as the “stop-time rule”, any period of continuous physical presence ends “when the alien is served a notice to appear under section 1229a.” Pereira held that “a notice that does ...
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