United States Court of Appeals

for the Fifth Circuit ____________

No. 22-60140

Summary Calendar

____________

San Juana Alvarez-De Sauceda, 

Petitioner, 

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

______________________________

Petition for Review of an Order of the 

Board of Immigration Appeals

Agency No. A091 374 218

______________________________

Before Jones, Haynes, and Oldham, Circuit Judges.

Per Curiam:*

San Juana Alvarez-De Sauceda, a native and citizen of Mexico, 

petitions for review of a decision of the Board of Immigration Appeals (BIA), 

denying reconsideration of its denial of a number barred motion to reopen.

_____________________

* 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opinion should not be published and is not precedent except under the limited 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

February 24, 2023

Lyle W. Cayce

Clerk

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No. 22-60140

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This court reviews the BIA’s denial of a motion to reconsider “under 

a highly deferential abuse-of-discretion standard.” Lowe v. Sessions, 872 F.3d 

713, 715 (5th Cir. 2017) (internal quotation marks and citation omitted). As 

long as the BIA’s decision “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,” it will 

be upheld. Id. (internal quotation marks and citation omitted).

Alvarez-De Sauceda argues that the BIA committed legal error when 

it found that her Notice to Appear (NTA), which failed to include the date 

and time of her removal hearing, vested the immigration court with 

jurisdiction over her removal proceedings. She acknowledges, however, that 

her jurisdictional argument based on Pereira v. Sessions, 138 S. Ct. 2105 

(2018), runs counter to this court’s binding precedent in Pierre-Paul v. Barr, 

930 F.3d 684 (5th Cir. 2019), abrogated in part on other grounds by Niz-Chavez 

v. Garland, 141 S. Ct. 1474, 1479-80 (2021), and Maniar v. Garland, 998 F.3d 

235 (5th Cir. 2021), but states that she is raising the issue to preserve it for 

further review.

This court held in Pierre-Paul that a defect in an NTA does not deprive 

an immigration court of jurisdiction over removal proceedings. 930 F.3d at 

691-93. Though the Supreme Court’s decision in Niz-Chavez abrogated 

Pierre-Paul in part, this court confirmed in Maniar that the jurisdictional 

holding from Pierre-Paul remains “the law of [this] circuit,” even after NizChavez. See Maniar, 998 F.3d at 242 n.2. Thus, there is no merit to AlvarezDe Sauceda’s contention that the immigration court lacked jurisdiction over 

her removal proceedings. See Pierre-Paul, 930 F.3d at 693.

Alvarez-De Sauceda further argues that the BIA erred in finding that 

she was statutorily ineligible for cancellation of removal under 8 U.S.C. 

§ 1229b(a)(3) based on her prior conviction for the Texas felony offense of 

possession of 50 pounds or less but more than five pounds of marijuana, 

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which the BIA deemed an aggravated felony. See 8 U.S.C. § 1101(a)(43)(B); 

see also TEXAS HEALTH & SAFETY CODE § 481.121(a) and § 481.121(b)(4). 

The Government initially moved this court to remand the case to the BIA in 

lieu of briefing so that the BIA could consider the impact, if any, of ArceVences v. Mukasey, 512 F.3d 167 (5th Cir. 2007), on its determination that 

Alvarez-De Sauceda’s marijuana conviction constituted an aggravated 

felony. We ordered that the motion be carried with the case and briefing 

resumed. The Government now argues in its brief that remand would be 

futile in light of this court’s recent decision in Djie v. Garland, 39 F.4th 280 

(5th Cir. 2022), because Alvarez-De Sauceda’s motion to reopen is number 

barred, and there is no statutory basis for the BIA to grant a number barred 

motion to reopen.

Here, Alvarez-De Sauceda sought reconsideration of the BIA’s denial 

of her second motion to reopen, arguing that the BIA committed legal error 

in determining that she was statutorily ineligible for cancellation of removal 

based on her prior conviction for possession of marijuana, which the BIA 

deemed an aggravated felony under § 1101(a)(43)(B). Even if we were to 

assume that Arce-Vences rendered the BIA’s characterization of Alvarez-De 

Sauceda’s marijuana conviction erroneous, applying the reasoning in Djie, 

remand to the BIA would be futile because § 1229a(c)(7)(A) bars her motion 

to reopen. See 39 F.4th at 288. As such, her petition for review must be 

denied, not remanded. See id. The Government’s motion to remand is 

likewise denied.

Finally, Alvarez-De Sauceda challenges the BIA’s refusal to exercise 

its discretionary authority to reopen her removal proceedings sua sponte 

based on her argument that the BIA erred in characterizing her marijuana 

conviction as an aggravated felony. This court has long held that it lacks 

jurisdiction to review challenges to the BIA’s decision not to exercise its 

authority to reopen removal proceedings sua sponte. See id.

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The petition for review is DENIED in part and DISMISSED in 

part. The Government’s unopposed motion to remand is DENIED.

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