IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-60742

Summary Calendar

SERGIO IBARRA-AMAYA,

Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A041 776 122

Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Sergio Ibarra-Amaya (Ibarra) is a native and citizen of Mexico and has 

petitioned for review of the decision of the Board of Immigration Appeals (BIA) 

denying his motion to reopen his removal proceedings as untimely. Ibarra filed 

a motion to reopen based on an application for protection under the Convention 

Against Torture (CAT) and asserting changed country conditions in Mexico. 

Ibarra contended, in his motion to reopen, that, if returned to Mexico, it 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.

United States Court of Appeals

Fifth Circuit

FILED

November 13, 2014

Lyle W. Cayce

Clerk

 

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No. 13-60742

more likely than not that he would be tortured generally on account of his 

membership in the Ibarra family due to a family land feud that dated back to 

the 1960’s. In support thereof, he pointed out that several of his family 

members had been kidnapped or killed in more recent years. The BIA denied 

the motion, finding that Ibarra had failed to establish a prima facie showing 

that it was more likely than not that Ibarra would be tortured with 

acquiescence of the government if returned to Mexico. 

Motions to reopen are disfavored, see Lara v. Trominski, 216 F.3d 487, 

496 (5th Cir. 2000), and 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). The BIA’s ruling will stand, even if we conclude that 

it is erroneous, 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.” Id. at 

304 (internal quotation marks and citation omitted). In determining whether 

an alien is entitled to protection under the CAT, all evidence relevant to the 

possibility of future torture in the proposed country of removal shall be 

considered, including, but not limited to: past torture inflicted upon the 

applicant; evidence that the applicant could relocate to another part of the 

country of removal where he not likely to be tortured; gross, flagrant, or mass 

violations of human rights; and other relevant information regarding 

conditions in the country of deportation. 8 C.F.R. § 208.16(c)(3). 

Ibarra has not shown that the BIA abused its discretion in holding that 

he had failed to make a prima facie case for a grant of relief under the CAT. 

See Zhao, 404 F.3d at 303. The evidence showed that Ibarra had not been 

tortured in the past, though he lived in Mexico, on and off, from the date of his 

birth in 1963 until he moved to the United States in 1983 and notwithstanding 

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that he contended that his family was being targeted due to the land feud 

dating back to the 1960’s. Further, it is not controverted that Ibarra’s siblings 

continue to live in Mexico unharmed, and he has not shown that he cannot 

safely relocate within Mexico. These factors warrant against finding in favor 

of CAT relief. See Eduard v. Ashcroft, 379 F.3d 182, 193 (5th Cir. 2004). 

Finally, Ibarra failed to produce any credible evidence that he is unable to

safely relocate to another part of Mexico. See Majd v. Gonzales, 446 F.3d 590, 

595-96 (5th Cir. 2006). The evidence does not compel a finding that it is more 

likely than not that Ibarra will be targeted for torture on his return to Mexico 

or that the Mexican government would acquiesce in any such torture. See Chen 

v. Gonzales, 470 F.3d 1131, 1139-42 (5th Cir. 2006). The petition for review is 

denied in part.

Further, Ibarra’s assertion that we have jurisdiction to review the BIA’s 

decision to not exercise its sua sponte authority to reopen the immigration 

proceedings is without merit. Because the authority to reopen an immigration 

proceeding sua sponte is entirely discretionary, we lack jurisdiction to review 

a challenge to the BIA’s refusal to do so. See Ramos-Bonilla v. Mukasey, 543 

F.3d 216, 220 (5th Cir. 2008); see also Ibarra-Gonzalez v. Holder, 542 F. App’x 

341, 341-42 (5th Cir. 2013) (determining that Kucana v. Holder, 558 U.S. 233 

(2010), does not hold otherwise). Thus, the petition is dismissed in part for 

lack of jurisdiction. 

PETITION FOR REVIEW DENIED IN PART AND DISMISSED IN 

PART FOR LACK OF JURISDICTION.

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