# United States Court **of Appeals**  **f or the Fift**  **h Circuit** 

No. 20

- 60138

**Santos Tamayac,**

Petitioner **,**

versus
**Merrick Garland,** U.S. Attorney General **,** Respondent

**.**

Petition for Review of the Order of the Board of Immigration Appeals BIA No. A029 921 809

Before **Elrod, Southwick,** and **Costa ,**  Circuit Judges

**. Per Curiam**  **:** *
Santos Tamayac, a native and citizen of Guatemala , petitions for review from a decision of the Board of Immigration Appeals dismissing his appeal and upholding the denial of his motion to reopen removal proceedings.
Because he fails to show any reversible error by the BIA, we **DENY** in part
and **DISMISS** in part the petition for review.

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED August 16, 2022

Lyle W. Cayce Clerk Case: 20-60138 Document: 00516434721 Page: 1 Date Filed: 08/16/2022No. 20

- 60138

2 Tamayac entered the United States without inspection near Nogales, Arizona in January 1991. A couple of years later, the government sent Tamayac an Order to Show Cause (OSC), alleging that he was a native and citizen of Guatemala and was subject to deportation. In an affidavit, Tamayac
certified that he has been “served with a copy of the Order to Show Cause in
this case.” His proceedings were scheduled to begin in Miami, Florida. But Tamayac filed a motion to transfer venue to Houston, Texas, and the judge granted the motion.
The Houston immigration court sent his lawyer, Ms. Juarbe, a certified mail providing written notice that a hearing was scheduled on June 12, 1995. But Juarbe stated that she was unable to reach Tamayac because his telephone number was disconnected and he had moved without leaving a forwarding address. Accordingly, the immigration judge issued a decision in
absentia on June 12, 1995, deny ing asylum and granting voluntary departure with an alternate order of deportation to Guatemala. Over twenty years later, in 2019, Tamayac’s new attorney filed a motion to reopen Tamayac’s removal proceedings and to rescind the deportation order . The immi gration judge denied the motion. Tamayac then appealed to the BIA, which affirmed the decision. Now, on petition for review, Tamayac raises three issues. First, he argues that the BIA erred in determining that he received proper notice of the June 12, 19 95 hearing. Second, he argues that the Immigration Judge lacked jurisdiction over him in his original proceedings because service of the
OSC was insufficient under BIA precedent . Third, he argues that the BIA failed to address his argument concerning sua sponte reopening and thus violated the regulatory requirement that the BIA exercise its independent judgment and discretion over cases before it. Case: 20-60138 Document: 00516434721 Page: 2 Date Filed: 08/16/2022No. 20

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3 This court reviews the denial of a motion to reopen under “a highly
deferential abuse

- of

- discretion standard. ” Ojeda

- Calderon v. Holder , 726 F.3d 669, 672 (5th Cir. 2013) (quoting Gomez

- Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009)). “[M]otions to reopen deportation proceedings are ‘disfavored,’ and the moving party bears a ‘heavy burden.’” Altamirano

Lopez v. Gonzales, 435 F.3d 547, 549

– 50 (5th Cir. 2006) (quoting INS v. Abudu , 485 U.S. 94, 110 (1988)). The BIA’s decision must be upheld so long as it “is not capricious, racially invidious, utterly without foundation in the evidence, or otherwise so ir rational that it is arbitrary rather than the result of any perceptible rational approach.” Zhao v. Gonzales , 404 F.3d 295, 304 (5th Cir. 2005) (quoting Pritchett v. INS, 993 F.2d 80, 83 (5th Cir.1993)). Questions of law are reviewed de novo , and the B IA’s factual findings are reviewed for substantial evidence and may not be overturned unless the evidence compels a contrary conclusion. Ojeda

- Calderon , 726 F.3d at 672

– 73.

I. The BIA reasonably determined that Tamayac had proper notice of his deportati on hearing. Under 8 U.S.C. § 1252b, which was applicable at the time of Tamayac’s 1993

– 1995 proceedings, a deportation order entered
in absentia could be rescinded only upon a motion to reopen filed at any time “if the alien demonstrates that [he] did not receive notice in accordance with” § 1252b(a)(2). 8 U.S.C. § 1252b (c)(3)(b) (repealed 1996). Section 1252b(a)(2) stated that “written notice shall be given in person to the alien (or, if personal service is not practicable, written notice shall be give n by certified mail to the alien or to the alien’s counsel of record, if any).” 8 U.S.C. § 1252b (a)(2). Tamayac’s notice of hearing was sent by certified mail to his counsel, Iris Juarbe, who Tamayac had personally “authorized

. . . to represent him.” Juarbe had previously submitted an asylum application and Case: 20-60138 Document: 00516434721 Page: 3 Date Filed: 08/16/2022No. 20

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4 motion to change venue on Tamayac’s behalf. And Juarbe herself signed a form certifying that she was Tamayac’s “attorney of record.” Tamayac argues that Juarbe was not his counsel “of record” because there is no current record showing that a notice of appearance was filed , and
thus , the notice of heari ng was inadequate. He contends that holding Juarbe as his counsel “of record,” even when Juarbe never filed a notice of appearance, would render the phrase “of record” in the statute mere surplusage. If Congress meant to permit notice to be sent to a per son’s
“counsel simpliciter ,” he argues, Congress “could have easily done so” by omitting the ph r ase “of record.” But Tamayac’s argument is premised on the false assumption that, in the present context, we must require the filing of a notice of appearance f or a counsel to be a counsel “of record” in order to give adequate meaning to the phrase. Of course, the phrase “counsel of record” in the statute does not just mean any counsel. But in the present case, the record warrants finding that Juarbe was more t han Tamayac’s “counsel simpliciter .” Juarbe had submitted motions to the court on Tamayac’s behalf, she signed a form certifying that she was Tamayac’s “attorney of record,” and Tamayac never
denie s

— even on appeal

— that Juarbe was authorized to represent h im i n his deportation proceedings. Indeed, the reason Tamayac’s case was transferred from Miami to Houston was because of a motion to transfer venue that Juarbe
filed

. We hold that these facts support the BIA’s determination that Tamayac had proper notic e of the hearing.

II. The BIA did not abuse its discretion in determining that the OSC service was proper. Tamayac argues that the immigration judge did not have personal jurisdiction over him because he was not properly served with the
OSC. He contends that effectuating service of an OSC sent by certified mail Case: 20-60138 Document: 00516434721 Page: 4 Date Filed: 08/16/2022No. 20

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5 under § 1252b requires a return receipt to be signed by the alien or a responsible person at the alien’s address. 8 U.S.C. § 1252b (repealed 1996); 8 C.F.R. § 103.8 (a)(2)(iv); see Matter of Grijalva , 21 I

. & N

. Dec. 27, 32

- 33 (BIA 1995)

. And because no signed receipt is in the administrative record here, he contends that the OSC service was improper. But Tamayac conceded service of the OSC in his 1994 affidavit. He
certified that he has bee n “served with a copy of the Order to Show Cause in
this case.” And in his 2019 affidavit and briefing on appeal, Tamayac still does not deny actual receipt of the OSC. Furthermore, Tamayac’s contention that the immigration judge lacks personal jurisdict ion fails because he admitted in his 1994 affidavit that he received the OSC and conceded “deportability as charged.” An “alien who fails to object to the notice to appear and concedes his removability ‘waive[s] his challenge to the [immigration judge’s] jurisdiction over the removal proceedings.’” Pierre

Paul v. Barr , 930 F.3d 684, 693 n.6 (5th Cir. 2019) (quoting Sohani v.
Gonzales , 191 F. App ’ x 258, 259 (5th Cir. 2006)). Tamayac did not at that time object to the OSC or to the immigration court ’s juri sdiction , and conceded deportability as charged. Thus, in light of Tamayac’s sworn contemporaneous admission and failure to object, the BIA did not err in determining that service of the OSC was proper.

III. Finally, Tamayac contends that the BIA violate d 8 C.F.R. § 1003.1(d)(1)(ii) because it failed to consider the issue of whether the immigration judge’s denial of sua sponte reopening was proper. He argues that such a failure violated the regulation , which provides that BIA
“members shall exercise thei r independent judgment and discretion in considering and determining the cases coming before the [BIA].” 8 C.F.R. § 1003.1(d)(1)(ii). Case: 20-60138 Document: 00516434721 Page: 5 Date Filed: 08/16/2022No. 20

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6 But this court lacks jurisdiction to consider this issue because Tamayac did not file a motion for reconsideration with the BIA. As we have explained in Omari v. Holder , when a “ new issue ” is introduced by the BIA’s
decision and “ the BIA has an available and adequate means for addressing that issue, a party must first bring it to the BIA ’ s attention through a motion
for reconsideration. ” 562 F.3d 314, 320 (5th Cir. 2009) ; see also Dale v.
Holder , 610 F.3d 294, 298 (5th Cir. 2010) (recognizing motions to reconsider as a jurisdictional prerequisite “ where petitioner asserts a wholly new ground for relief arising only as a consequence of some error in the deportation proceedings ”) ; Martinez

- Guevara v. Garland , 27 F.4th 353 , 360 (5th Cir. 2022) (affirming the rules in Omari and Dale ). The error that Tamayac alleges resulted from the BIA’s decision and was never presented to the BIA in the first instance. Thus, this court has no jurisdiction to consider the
argument.

* * *
For these reasons, we **DENY** in part and **DISMISS** in part the petition for review. Case: 20-60138 Document: 00516434721 Page: 6 Date Filed: 08/16/2022