IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-60729

Summary Calendar

SERVANDO ZAVALA-RIOS,

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. A088 608 006

Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges.

PER CURIAM:*

Servando Zavala-Rios, a Mexican citizen who has been removed to Mexico,

petitions for review of the Board of Immigration Appeals’ (BIA) order denying

his motion to reconsider the dismissal of his appeal from the Immigration

Judge’s (IJ) denial of his cancellation-of-removal application. He contends: (1)

the BIA erred in finding his motion for reconsideration was withdrawn pursuant

to the departure bar of 8 C.F.R. § 1003.2(d); (2) the BIA failed to consider claims

of constitutional-rights violations pursuant to his arrest by immigration officials;

United States Court of Appeals

Fifth Circuit

F I L E D

September 28, 2012

Lyle W. Cayce

Clerk

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.

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and (3) he submitted affidavits from his parents establishing his entry to the

United States in 1994, and that his removal would result in hardship to his

parents.

A motion to reconsider must identify some error of fact or law in the prior

BIA decision; a motion to reopen alleges new facts and is supported by evidence,

such as affidavits. See 8 C.F.R. § 1003.2(b)(1), (c)(1). Because Zavala submitted

new evidence in support of his motion, it is construed as a motion to reconsider

and to reopen. See Zhao v. Gonzales, 404 F.3d 295, 301 (5th Cir. 2005). Both

types of motions are disfavored, and their denial is reviewed for abuse of

discretion. See Lara v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000); Zhao, 404

F.3d at 303. In that regard, the BIA’s denial will stand “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”. Zhao, 404 F.3d at 304 (internal quotation marks

and citation omitted). 

Because, as discussed infra, the BIA properly denied Zavala’s motion on

the merits, whether his involuntary removal constituted a withdrawal of his

motion pursuant to 8 C.F.R. § 1003.2(d) need not be considered.

In his motion for reconsideration, Zavala claimed, for the first time, a

constitutional rights violation pursuant to his arrest. His sole supporting

evidence is a single sentence in his parents’ affidavit, which claims a Fifth

Amendment violation when officers searched Zavala’s home. Even if he had

presented more evidence, the BIA will not grant a motion to reopen unless the

evidence offered is material and could not have been previously discovered or

presented at a prior hearing. 8 C.F.R. § 1003.2(c)(1). Because there is no

indication that such evidence was previously unavailable or could not have been

presented earlier, the denial of his motion was not an abuse of discretion. See

Ogbemudia v. INS, 988 F.2d 595, 599-600 (5th Cir. 1993); Zhao, 404 F.3d at 303-

04. 

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The IJ and BIA also found that Zavala had not established eligibility for

cancellation of removal because he had not shown: (1) ten years of continuous

presence in the United States; and (2) “exceptional and extremely unusual

hardship” to qualifying relatives if he was removed. 8 U.S.C. § 1229b(b)(1). As

part of his motion to reconsider, in support of his claim of such continuous

presence, Zavala submitted an affidavit from his parents that he had first

entered the United States in 1994. However, as we noted above, the BIA will not

grant a motion to reopen unless the evidence offered is material and could not

have been previously discovered or presented at a prior hearing. 8 C.F.R.

§ 1003.2(c)(1). Because Zavala could have previously presented evidence of his

1994 entry, he cannot show the BIA’s denial of his motion was an abuse of

discretion. 8 C.F.R. § 1003.2(c)(1); Ogbemudia, 988 F.2d at 599-600; Zhao, 404

F.3d at 303-04. 

Finally, the BIA denied Zavala’s motion because he provided no new

evidence to show his removal would cause his parents exceptional or unusual

hardship. Here, Zavala asserts incorrectly that the IJ found his removal would

cause such hardship; the IJ stated expressly that Zavala failed to carry his

burden in this regard. Therefore, he has not shown the BIA abused its

discretion in its denial of his motion. Zhao, 404 F.3d at 303-04.

DENIED.

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