### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-60397 Summary Calendar

THUY THI-THU LE,
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. A096 278 359

Before WIENER, ELROD, and GRAVES, Circuit Judges. PER CURIAM: * Thuy Thi-Thu Le, a native and citizen of Vietnam, p e titions for review of the decision of the Board o f Immigratio n Appeals (BIA) dismissing her appeal from the Immigration J udge’s (IJ) denial of her motion to reopen removal proceedings. S h e contends that the evidence s u p p orts a finding that she was married prior to e ntering the United States. She also asserts th at she relied on advice from counsel in r equesting voluntary departure and t hat she did not understand the consequences of voluntary departure. Finally, Le contends that U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D May22, 2013 Ly l e W . Cayce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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she w as entitled to cancellation of removal b ased on extreme hardship and under the Violence Against Women Act. The Respondent argues that this c o urt lacks jurisdiction over Le’s petition because her motion was b ased on the IJ’s discretionary authority to sua sponte reopen proceedings. Presumably, the Respondent is basing this assertion on the premise that the m otion to reopen was not timely filed. Th e only avenue of relief available to aliens who f ile untimely motions to r eopen before the IJ are motions based on the sua sponte authority to r eopen or reconsider the proceedings. See Ramos-Bonilla v. Mukasey , 543 F.3d 216, 219-20 (5th Cir. 2008); 8 C.F.R. § 1003.23(b)(1). Le’s motion to reopen was filed with the IJ on June 7, 2010, more than 90 days after the IJ’s F ebruary 18, 2010, decision, but prior to an overstay of the voluntary departure period. Therefore, h er motion to reopen was not untimely because it was not filed l ater than 90 days from the finality o f the order of

r e m oval. See § 1003.23(b)(1); 8 C.F.R. § 1 240.26(b)(1)(iii), (iv); 8 C.F. R

. § 1241.1(f). A d di t i o nally, the IJ and the BIA did no t reference the motion as being untimely or as falling within the IJ’s discretionary authority to sua sponte reopen the proceedings. We have jurisdiction to consider denials of motions to reopen. Nolos v. Holder , 611 F.3d 279, 281 (5th Cir. 2010) (citing Kucana v. Holder , 1 30 S. Ct. 827, 8 38-40 (2010)). Such motions are disfavored, see Lara v . Trominski , 216 F.3d 487, 496 (5th Cir. 2000), and we review the denial of a motion to reo pen

un der a “highly deferential abuse-of-discretion standard.” Zhao v. Gonzales , 404 F.3d 295, 303 (5th Cir. 2005). Le makes no argument or showing that the motion relied on new facts that

were not “available and could not have been discovered at the former h earing.” § 1003.23(b)(3). As to any claim of ine f f e c t iv e assistance, the BIA refused to consider such a claim, finding that Le failed to comply with the requirements for making a valid claim of ineffective assistance of counsel as s et forth in Matter of
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Lozada , 1 9 I. & N. Dec. 637 (BIA 1998). Because she does not address the BIA’s ruling o n this i ssue, any challenge to the BIA’s ruling on this issue is abandoned. See Soadjede v. Ashcroft , 324 F.3d 830, 833 (5th Cir. 2003). A s to Le’s claim that she will suffer extreme h ardship and is ent i t l e d t o cancellation of removal, the B IA found that she failed to support the motion to
reopen with any application for relief from removal as is requ i r e d b y § 1 003.23(b)(3), which provides that a motion to reopen “for the purpose of acting

on an application for relief must be accompanied b y the appropriate application for relief.” Again, b ecause Le does not challenge the BIA’s ruling on this issue, the issue is abandoned. See Soadjede , 324 F.3d at 833. The assertion that Le would have been e ntitled t o r elief in the form of cancellation of r emoval under the Violence Against Women Act because she was abused by her former fiancé w as not raised before the IJ or the BIA. Therefore, this court l acks jurisdiction to consider Le’s argument that she would be entitled to relief based on her allegations of abuse. See Roy v. Ashcroft , 3 89 F.3d 1 32, 137 (5th Cir. 2004). The BIA did not abuse its discretion in dismissing Le’s appeal from the denial of the motion to reopen. See Zhao , 404 F.3d at 303. Her pet i tion for review is DENIED.

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