### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 Ap p e a l s’ (BIA) order denying h is motion to reconsider the dismissal of his appeal from the Immi gr a t i o n 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 He contends: (1) the BIA erred in finding his motion for reconsideration was withdrawn pursuant to the departure bar of 8 C.F.R. § 1003.2(d); (2) the BIA failed to consider claims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 c o n s titutional-rights violations pursuant to his arrest b y i m mi gr atio n of f ici al s ; U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Sep tem ber 2 8, 2 012 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-60729 Document: 00512003488 Page: 1 Date Filed: 09/28/2012No. 11-60729

and (3) he submitted affidavits from his parents establishing his entry to the U n i t e d 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 d e n i a l i s reviewed for abuse of discretion. See Lara v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000); Zhao, 404 F.3d at 303. I n that regard, the BIA’s denial will stand “so long as it is not capricious, ra cially 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 with dr a wal of his motion pursuant to 8 C.F.R. § 1003.2(d) need not be considered. In his motion for reconsideration, Zava l a c l a i med, for the first time, a constitutional rights violation pursuant to his arres t

. H i s sole supporting evidence is a single sentence i n h i s parents’ affidavit, which claims a Fifth Amendment violation when officers searched Zav a l a ’s home. Even if he had presented more evidence, the BIA will not grant a motion to reopen unless the

e vi d ence offered is material and could not have been previously discove r e d o r presented at a prior hearing. 8 C

. F

. R

. § 1 0 0 3.2(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 th e U n ited 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 reconside r , i n s u p p ort of his claim of such continuous presence, Zavala submitted an affidavit from his par e n t s th a t 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 b e e n 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 th e B IA’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 becau s e he provided no new evidence to show his removal would cause his p a r e nts exceptional or unusual hardship. Here, Zavala asserts incorrectly that the IJ found his removal would

c a u s e such hardship; the IJ stated expressly that Zavala failed to carry his burden in this regard. Therefore, he h a s 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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