Melendez De Arriola, et al v. Barr

United States Court of Appeals
for the Fifth Circuit

No. 19-60885
Summary Calendar

Delita Deysi Melendez De Arriola; Nancy Jacqueline
Arriola-Melendez,

Petitioners,

versus

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

Respondent.

Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A071 777 729
BIA No. A071 777 731

Before Clement, Higginson, and Engelhardt, Circuit Judge.
Per Curiam:*
Delita Deysi Melendez de Arriola and her daughter, Nancy Jacqueline
Arriola-Melendez, petition for review of the Board of Immigration Appeals’

*
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opinion should not be published and is not precedent except under the limited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
August 14, 2020

Lyle W. Cayce
Clerk
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No. 19-60885
2
(BIA) order denying their second motions to reopen and rescind their 1991
in absentia removal orders. In their motions to reopen and rescind,
Petitioners asserted that they had not received notice of their removal
proceedings. We review the BIA’s decision under a deferential abuse of
discretion standard, overturning only if it was “capricious, without
foundation in the evidence, or otherwise so irrational that it is arbitrary rather
than the result of any perceptible rational approach.” Hernandez-Castillo v.
Sessions, 875 F.3d 199, 203–04 (5th Cir. 2017) (internal quotation marks and
citation omitted).
Petitioners contend that they presented evidence that the INS
repeatedly mailed documents to them that did not include their apartment
number, making it impossible to deliver the documents. Petitioners assert
that they did not receive the immigration court’s notice of hearing and that it
is unreasonable to assume that the mailings could be delivered to them
without a proper apartment number.
In 2017, in an order denying Petitioners’ first motions to reopen, the
immigration judge (IJ) found that the August 19, 1991, order denying their
motions to change venue and setting their hearing for September 4, 1991,
constituted proper notice of their hearing, that Petitioners had failed to rebut
the presumption that the notices of hearing were delivered to them, and that
their assertions that they did not receive notices were not credible. The IJ
concluded that Petitioners had failed to show that they did not receive notice
of their hearing or “reasonable cause” for their failure to appear. On appeal,
the BIA stated that Petitioners had actual notice of their deportation
proceedings as shown by their motion to change venue. Further, Petitioners’
decision to wait nearly 25 years before reinitiating their deportation
proceedings demonstrated a lack of diligence, which undermined their
claimed lack of notice of the September 4, 1991, hearing and militated against
exercising discretion to reopen the deportation proceedings. Although
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No. 19-60885
3
Petitioners sought review of the BIA’s 2017 decisions, we dismissed their
petition for review for failure to file a brief.
In 2019, the BIA denied their second motions to reopen, noting that
their motions to reopen relied on the same or substantially similar arguments
and evidence which had already been “considered and rejected” by the IJ
and the BIA in 2017. The BIA explained that their updated affidavits and
limited additional documents were unpersuasive and did not rebut or address
the reasons their original motions to reopen were denied.
On appeal, Petitioners do not address the BIA’s reasoning or make
any attempt to explain what material evidence they have presented that was
not available when their first motions to reopen were filed. Further,
Petitioners do not identify any evidence that impacts the IJ’s original adverse
credibility finding. Petitioners have not demonstrated that the BIA’s denial
of their second motions to reopen constituted an abuse of discretion. Id. at
203. Accordingly, the petition for review is DENIED in part.
Petitioners have also invoked the BIA’s regulatory power to sua sponte
reopen proceedings. The BIA denied their request to reopen the proceedings
sua sponte, concluding that the motions to reopen and evidence did not
present an exceptional situation which would warrant such a decision. We
lack jurisdiction to review the BIA’s decision not to exercise its discretion to
reopen proceedings sua sponte. See id. at 206–07 & n.3. The petition is
therefore DISMISSED in part. See id. at 209.
DISMISSED IN PART AND DENIED IN PART.

Case: 19-60885 Document: 00515528228 Page: 3 Date Filed: 08/14/2020