Case: 18-60838 Document: 00515401424 Page: 1 Date Filed: 04/30/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 18-60838 April 30, 2020 Lyle W. Cayce RUDY OVIDIO NORATO LOPEZ, 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. A205 650 932 Before STEWART, DENNIS, and HAYNES, Circuit Judges. PER CURIAM: * Rudy Ovidio Norato Lopez (Norato Lopez), a native and citizen of Guatemala, seeks review of a Board of Immigration Appeals (BIA) order dismissing his appeal from an Immigration Judge’s (IJ) denial of his motion to reopen and denying his motion to remand. We DENY the petition for review. I. Norato Lopez entered the United States on an unknown date, was arrested for driving while intoxicated on January 29, 2013, and was * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 18-60838 Document: 00515401424 Page: 2 Date Filed: 04/30/2020 No. 18-60838 subsequently convicted. On April 30, 2013, he was served with a Notice to Appear (NTA), charging him with being subject to removal for entering the United States without being admitted or paroled. Norato Lopez subsequently appeared before the IJ, admitted the allegations, and conceded removability. He requested relief in the form of voluntary departure. He did not request any other relief. On September 22, 2016, the IJ issued an order granting Norato Lopez’s request for voluntary departure. On December 21, 2016, newly-retained counsel for Norato Lopez submitted a motion to reopen immigration proceedings, asserting that prior counsel was ineffective for failing to advise him of the possibility of relief in the form of withholding of removal. Norato Lopez contended that he was prejudiced by counsel’s failure because, but for his counsel’s failure to advise him of the possibility of this type of relief, he would have requested withholding of removal based on his fear of returning to Guatemala. Accompanying the motion was an application for withholding of removal and an affidavit wherein Norato Lopez stated that his father was “being persecuted in Guatemala at the hands of gang members who have threatened to kill our entire family.” The immigration court rejected the filing of the motion to reopen, stating that it could not accept counsel’s Notice of Entry of Appearance as Attorney or Representative Before the Immigration Court, referred to as Form EOIR-28, until counsel filed a motion to substitute or annotated the form “to reflect an ‘on-behalf-of’ appearance or an appearance as co-counsel.” In a letter dated January 9, 2017, counsel argued to the immigration court that the motion was rejected in error, explaining that the regulation governing motions to reopen expressly requires counsel to file a Form EOIR-28. Counsel also filed a second motion to reopen, which was received on January 10, 2017. 2 ...
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