Ponce-Alvarado v. Barr

United States Court of Appeals
for the Fifth Circuit

No. 19-60484
Summary Calendar

Jugdeneth Elizabeth Ponce-Alvarado, also known as
Judinieth Ponce Alvarado,

Petitioner,

versus

William P. Barr, U.S. Attorney General,

Respondent.

Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A077 620 260

Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Jugdeneth Elizabeth Ponce-Alvarado, a native and citizen of
Nicaragua, petitions for review of an order of the Board of Immigration
Appeals (BIA) denying her motion to reopen removal proceedings. Ponce-

*
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opinion should not be published and is not precedent except under the limited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.
United States Court of Appeals
Fifth Circuit
FILED
December 28, 2020

Lyle W. Cayce
Clerk
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No. 19-60484
2
Alvarado argues that the BIA abused its discretion by failing to adequately
consider her arguments for equitable tolling. Relying on the Supreme
Court’s opinion in Pereira v. Sessions, 138 S. Ct. 2105 (2018), Ponce-Alvarado
also contends that the Notice to Appear (NTA) did not end her continuous
presence in the United States or vest the immigration court with jurisdiction
because it did not specify the date and time of her removal hearing. She
asserts that the BIA abused its discretion by concluding that the NTA was
not deficient, that the NTA conferred jurisdiction upon the immigration
court, and that she was not prima facie eligible for cancellation of removal.
She further challenges the BIA’s rejection of her due process argument and
its refusal to reopen proceedings sua sponte.
Motions to reopen are disfavored. Lara v. Trominski, 216 F.3d 487,
496 (5th Cir. 2000). We review the denial of a motion to reopen under a
“highly deferential abuse-of-discretion standard.” Zhao v. Gonzales, 404
F.3d 295, 303 (5th Cir. 2005).
We need not address Ponce-Alvarado’s arguments regarding
equitable tolling because the BIA addressed the merits of her motion under
the assumption that she provided adequate justification for the motion’s
untimeliness. See Enriquez-Gutierrez v. Holder, 612 F.3d 400, 407 (5th Cir.
2010) (reasoning that a court “may usually only affirm the BIA on the basis
of its stated rationale”). Her arguments regarding the allegedly deficient
NTA and the lack of jurisdiction by the immigration court are foreclosed by
this court’s decisions in Pierre-Paul v. Barr, 930 F.3d 684 (5th Cir. 2019), cert.
denied, 140 S. Ct. 2718 (2020), and Yanez-Pena v. Barr, 952 F.3d 239 (5th Cir.
2020), petition for cert. filed (U.S. Apr. 6, 2020) (No. 19-1208). Thus, she
does not show that the BIA abused its discretion in concluding that she failed
to establish prima facie eligibility for cancellation of removal. See Yanez-
Pena, 952 F.3d at 245-46; INS v. Abudu, 485 U.S. 94, 104 (1988); Zhao, 404
F.3d at 303.
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No. 19-60484
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Her due process claim fails to implicate a protected liberty interest.
See Ramos-Portillo v. Barr, 919 F.3d 955, 963 (5th Cir. 2019). Finally, we
dismiss for lack of jurisdiction the portion of Ponce-Alvarado’s petition
seeking review of the BIA’s decision to decline to reopen the proceedings sua
sponte. See Hernandez-Castillo v. Sessions, 875 F.3d 199, 206 (5th Cir. 2017).
The petition for review is DENIED IN PART and DISMISSED
IN PART.
Case: 19-60484 Document: 00515686353 Page: 3 Date Filed: 12/28/2020