Case: 20-60189 Document: 00516059138 Page: 1 Date Filed: 10/18/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 18, 2021 No. 20-60189 Lyle W. Cayce Summary Calendar Clerk Nelson Omar Rosales-Santos, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A028 589 969 Before Wiener, Dennis, and Haynes, Circuit Judges. Per Curiam:* Nelson Omar Rosales-Santos petitions for review of the Board of Immigration Appeals’ (BIA) order denying his motion to reopen and rescind his 1989 in absentia order of deportation, in which he asserted that he had not * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Judge Wiener concurs in the judgment only. Case: 20-60189 Document: 00516059138 Page: 2 Date Filed: 10/18/2021 No. 20-60189 received notice of his deportation hearing and denying his motion to remand “for reconstitution of the record.” We review the BIA’s denial of a motion to reopen and motion to remand under a highly deferential abuse of discretion standard, Milat v. Holder, 755 F.3d 354, 365 (5th Cir. 2014); Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009), and will uphold the decision 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,” Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006) (internal quotation marks and citation omitted). Rosales-Santos challenges the BIA’s findings that the second page of the order to show cause (OSC) establishes that he signed and was personally served with the OSC. Based on his contention that he was not personally served with the OSC, he argues that the immigration judge (IJ) was prohibited from proceeding in absentia until he was personally served with the notice of his deportation hearing. The IJ marked the OSC as Exhibit 1 at the 1989 deportation hearing, admitted it into evidence, and found that the OSC had been properly served. Both pages of the OSC appear consecutively in the record, and signatures of immigration officials appear on both pages of the OSC, indicating that both pages were signed at the same exact date and time. Substantial evidence supports the BIA’s finding that the OSC was personally served on Rosales-Santos, such that his service argument fails, as discussed below. See Gomez-Palacios, 560 F.3d at 358. Furthermore, Rosales-Santos contends that the record does not contain a copy of the transcript from the 1989 in absentia deportation hearing and that the lack of a transcript somehow prejudices him because it is possible that the hearing was not held on the merits. However, Rosales-Santos failed to exhaust this same argument with the BIA, and we lack jurisdiction to consider it where he raises it for the first time in …
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