* Pursuant to 5 TH C IR

. 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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

January 13, 2006

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 04-60894

Summary Calendar

__________________________

ERLICK MAZARIEGOS-DIAZ,

Petitioner,

versus

ALBERTO R GONZALES, U.S. ATTORNEY GENERAL,

Respondent.

___________________________________________________

Petition for Review from the Board of Immigration Appeals

(No. A78 917 485)

___________________________________________________

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM: *

Erlick Mazariegos-Diaz seeks review of a final order by the Board of Immigration

Appeals (“BIA”) affirming the decision of the immigration judge (“IJ”), which denied his

motion to reopen. For the reasons which follow, we deny his petition for review.

I. FACTS AND PROCEEDINGS2

Mazariegos is a citizen of Guatemala, who entered the United States on July 13,

2003, without being admitted or paroled. He was charged as removable under the

Immigration and Nationality Act (“INA”) § 212(a)(6)(i), 8 U.S.C. § 1182(a)(6)(i), by the

Department of Homeland Security.

On July 25, 2003, Mazari egos’s former attorney filed a motion for bond

determination, stating that Mazariegos appeared to be eligible for asylum, withholding of

removal, and protection under the Convention Against Torture. The attorney attached a

copy of Mazariegos’s father’s asylum application. On August 12, 2003, Mazariegos

appeared at a hearing before the IJ and conceded removability. Through counsel, he also

waived all relief from r emoval and requested the maximum period of voluntary departure,

sixty days. The IJ asked Mazariegos’s attorney whether there were any refugee issues, and

the attorney replied that there were not. The IJ granted the request for voluntary

departure, giving Mazariegos until October 14, 2003, to depart the United States.

On October 28, 2003, through new counsel, Mazariegos filed a motion to reopen in

order to apply for asylum. He claimed that he was fearful of returning to Guatemala and

that he did not un derstand the consequences of voluntary departure. On December 1,

2003, the motion was denied. The IJ stated that Mazariegos had waived all relief from

removal in order to obtain the maximum period of voluntary departure. The IJ rejected

Mazariegos’s ineffective assistance of counsel claim. The IJ further denied the motion as

a matter of discretion because he found that Mazarie gos waited until the voluntary3

departure period expired before moving to reopen the case and, consequently, the claim

for asylum appeared fabricated.

Mazariegos appealed to the BIA, which adopted and affirmed the order of the IJ.

Additionally, the BIA found that Mazariegos’s argument that the IJ did not inform him of

potential forms of relief had no merit because the IJ did inquire whether there were any

asylum issues. The BIA also indicated that, if Mazariegos believed the IJ denied him a

rightful opportunity to apply for asylum, he sho uld have appealed the original order

granting only voluntary departure.

On appeal to this court, Mazariegos clai ms that the BIA abused its discretion by

refusing to reopen his removal proceedings. He raises three issues: (1) his timely motion

to reopen complied with the law; (2) he offered new evidence; and (3) the IJ failed to

inform him of his apparent eligibility in violation of the federal regulations.

II. STANDARD OF REVIEW

“The regulations authorize, but do not require, the BIA to reopen proceedings

under certain circumstances. . . . The grant of a motion to reopen is therefore

discretionary.” L ara v. Trominski

, 216 F.3d 487, 496 (5th Cir. 2000) (c iting I.N.S. v.

Doherty

, 502 U.S. 314, 322–23 (1992)). This court reviews denials of motions to reopen

under the highly deferential abuse of discretion standard. Id. ; s ee also Wellington v.

I.N.S.

, 108 F.3d 631, 636 (5th Cir. 1997). “[T]he standard is whether the Board has acted

within the bounds of an abundant discretion granted it by Congress.” Pritchett v. I.N.S.

,

993 F.2d 80, 83 (5th Cir. 1993). “Such discretion is not to be disturbed ‘so long as it is not1 In his brief, Mazariegos cites to 8 C.F.R. §§ 240.11(a)(2) and (c)(1)(i). In February 2003, §

240 was moved to § 1240, without substantive changes. See Aliens and Nationality,

Homeland Security, Reorganization of Regulations, 68 Fed. Reg. 9824-01 (Dep’t of Justice

Feb. 28, 2003). We cite to the current provision here.

2 Mazariegos also asserts that the IJ’s failure to follow the regulations resulted in a denial

of due process. This argument is without merit. “The Fifth Amendment requires that

aliens subject to removal proceedings be provided due process: ‘(1) notice of the charges

4 capricious, racially invidious, utterly without foundation in the evidence, or otherwise so

aberrational that it is arbitrary rather than the result of any perceptible rational approach.’”

Manzano-Garcia v. Gonzales

, 413 F.3d 462, 469 (5th Cir. 2005) (quoting Pritchett

, 993 F.2d

at 83).

III. DISCUSSION

A. Mazariegos’s Claims

Mazariegos argues that the BIA abused its discre tion because his motion was timely,

his application for

asylum presents new evidence, and the IJ failed to inform him of his

eligibility for asylum. Specifically, he points out that his motion was timely because it was

filed on October 28, 2003, within the ninety-day window mandated by the regulations. S ee

8 C.F.R. § 1003.2(c)(2). While timeliness is a prerequisite of a motion to reopen, it does not

guarantee the motion will be granted. Similarly, the new evidence of Mazariegos’s asylum

application provides a ground on which to grant a motion to reopen, but does not require

it. S ee 8 C.F.R. § 1003.2(c)(1). The BIA has discretion in the matter. L ara

, 216 F.3d at 496.

Mazariegos cites to 8 C.F.R. §§ 1240.11(a)(2) and (c)(1)(i) 1 and to Matter of Cordova

,

22 I. & N. 966 (BIA 1999), in support of his contention that the IJ had a duty to inform him

of other forms of reli ef. 2 Mazariegos’s reliance on 8 C.F.R. § 1240.11(a)(2) is erroneousagainst him, (2) a hearing befo r e an executive or administrative tribunal, and (3) a fair

opportunity to be heard.’” M anzano-Gar cia , 413 F.3d at 470 (quoting U nited States v.

Lopez-Ortiz

, 313

F.3d 225, 230 (5th Cir. 2002)). Mazariegos was afforded these three

requirements of due process.

3 Mazariegos also argues that the record contained a motion for bond redetermination that

stated Mazariegos may be eligible for asylum and, therefore, put the IJ on notic e of his

apparent eligibility. However, this argument fails. The same attorney who submitted the

bond redetermination motion answered the IJ’s question regarding whether there were

refugee issues. The judge had no reason not to believe the attorney.

5 because the section applies to aliens w ho are submitting applications for the status of

lawful permanent resident. Section 1240.11(c)(1)(i) is potentially applicable to Mazariegos;

it provides: “If the alien expresses fear of persecution or harm upon return to any of the

countries to which the alien might be removed . . . and the alien has not previously filed

an application for asylum

. . . the immigration judge shall

. . . [a]dvise the alien that he or

she may apply for asylum in the United States.

. . .” In Cordova

, the BIA stated: “An

Immigration Judge has a duty to inform aliens of potential forms of relief for which they

are apparently eligible .” 22 I. & N. at 970 (emphasis added). Section 1240.11(c)(1)(i) makes

clear that the alien must express fear of persecution in order for the provision to apply.

Cordova likewise sugg ests that the judge must have some indication that the alien’s

situation warrants other forms of relief before his duty is triggered. In the instant case, the

IJ asked Mazariegos, through counsel, whether there were any refugee issues. The

attorney replied that there were not. With this response, the IJ had no reason to suppose

that Mazariegos feared persecution nor that he was eligible for asylum relief. 3 Therefore,

the IJ did not violate a duty to inform Mazariegos of his eligibility for asylum.6

B. Review

We find that the BIA did not abuse its discretion in denying the motion to reopen.

First, even though Mazariegos submitted new evide nce in the form of an asylum

application, the new evidence related directly to the issue about which the IJ had inquired

during Mazariegos’s hearing. The evidence could have been presented at the hearing. As

the IJ stated, the relative tardiness of the application raised questions as to its genuineness.

Consequently, it was within the IJ’s discretion to determine that this new evidence did not

warrant reopening Mazariegos’s case. Second, the IJ did not violate any duty to inform

Mazariegos about oth er forms of relief. Because the IJ raised the issue of other possible

forms of relief at the hearing, it was again reasonable to determine that Mazariegos’s case

need not be reopened on this ground. Third, Mazariegos could have directly appealed the

IJ’s grant of voluntary departure but did not. He waited until the voluntary departure

period expired before expressing fears of returning to his home country. Given these

considerations, the record shows that the BIA had reasons to deny Mazariegos’s motion

to reopen. Because this decision was neither unreasonable nor arbitrary, the BIA did not

abuse its discretion in doing so. See Manzano-Garcia , 413 F.3d at 470.

IV. CONCLUSION

Mazariegos’s petition for review is DENIED.