### REVISED July 25, 2018
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 16

- 60602

SANDRA GABRIELA HERNANDEZ

- ANDRADE; ARTURO ROBERTO RAUDALES

- HERNANDEZ,
Petitioners

v. JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL, Respondent

Petition for Review of an Order of the Board of Immigration Appeals BIA No. A098 285 582 BIA No. A098 285 583

Before ELROD, COSTA, and HO, Circuit Judges

. PER CURIAM: * Sandra Gabriela Hernandez

- Andrade petitions

— on behalf of both herself and her son Arturo Roberto Raudales

- Hernandez

— for review of an order of the Bureau of Immigration Appeals (the “BIA”) dismissing a motion to

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .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 July 23 , 2018 Lyle W. Cayce Clerk Case: 16-60602 Document: 00514570178 Page: 1 Date Filed: 07/25/2018No. 16

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2 reconsider her motion to reopen. Because we lack jurisdiction, the petition for review is dismissed. I. Hernandez

- Andrade and her son

— natives and citizens of Honduras

— entered the United States illegally near Eagle Pass, Texas in Ju ne 2004. The Border Patrol bri efly detained both and processed them for removal proceedings. Hernandez

- Andrade and her son were personally served with notices to appear charging them with being present in the United States without admission or parole. B oth notices explained that a hearing date would be set later, and Hernandez

- Andrade confirmed in writing that she had been advised in Spanish of the consequences of failing to appear

. While detained, Hernandez

- Andrade expressed her intention to reside with her sister in North Hills, California, and provided the border patrol with that address. Approximately one month l ater, the immigration court sent a notice of hearing to that address via regular mai l. Though the notice of hearing was not returned as undeliverable, Hernandez

- Andrade contends that she never received it. She therefore failed to appear for proceedings before the immigration court and was ordered removed in absentia

. About 11 years lat er, in 2015, Hernandez

- Andrade filed a motion to reopen removal proceedings, contending that she would have appeared at her immigration hearing had she received notice . The immigration judge denied Hernandez

- Andrade’s motion to reopen in a written decisio n and the BIA affirmed. This petition for review followed. II. We have jurisdiction to “ review a fin al order of removal only if

. . . the alien has exhausted all admi nistrative remedies availabl e to the alien as of right. ” 8 U.S.C. § 1252(d)(1)

. S ee also Wang v. Ashcroft , 260 F.3d 448, 452 (5th Cir. 2001)

. “Petitioners fail to exhaust their administrative remedies as to an Case: 16-60602 Document: 00514570178 Page: 2 Date Filed: 07/25/2018No. 16

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3 issue if they do not first raise the issue before the BIA, either on direct appeal or in a motion to reopen. ” Omari v. Holder , 5 62 F.3d 314, 318 (5th Cir. 2009)

. III. Before this Court, Hernandez

- Andrade claims t hat ordering her removal in abs entia vi olated her due process rights. But Hernandez

- Andrade never presented a due process argument to the BIA. Rather, she argued that the immigration judge erred in concluding that she received proper notice of the removal hearing based on the evidence presented and that the BIA should exercise its sua sponte authority to reopen proceedings. This failure is fatal to our jurisdiction. Whil e not presenting consti tutional claims to the BIA may be excused, s ee Contreras

- Banda v. Mukasey , 283 F. App ’x 300, 303 (5th Cir. 2008) , that is not true when “ a petitioner seeks to raise a claim not presented to the BIA and the claim is one that the BIA h as adequate mechanisms to address and remedy .” Roy v. Ashcroft , 389 F.3d 132, 137 (2004) (quoting Goonsuwan v. Ashcroft , 252 F.3d 383, 390 (5th Cir. 2001)) . Here , although Hernandez

- Andrade’s argument “ is couched in terms of due process, it actually concerns ‘ procedural error correctable by the BIA. ’ ” Roy , 389 F.3d at 137 (quoting Anwar v. INS , 116 F.3d 140, 144 n. 4 (5th Cir. 1997)). Hernandez

- Andrade claims only that she was deprived of a full and fair hearing because she did not receive notice, but the BIA coul d have granted her motion to reopen

— thus curing any alleged due process violation that occurred. See , e.g. , id. ; Sarabia

- Lopez v. Lynch , 623 F . App’x 720, 721 (5th Cir. 2015)

. Therefore, Hernandez

- Andrade’s petition i s non - exhausted and we lack jurisdiction. 1

1 It is difficult to see how Hernandez

- Andrade could succeed on her due process argum ents even if we had jurisdiction . We have repeatedly held that “ there is no liberty interest at stake in a motion to reopen due to the discretionary nature of the relief sought, ” Case: 16-60602 Document: 00514570178 Page: 3 Date Filed: 07/25/2018No. 16

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4 IV. Hernandez

- Andrade’s Petition for Review is DISMISSED

.

and have done so even “ assuming arguendo

. . . that [ the petitioner ] could e stablish that he was eligible for relief.” Hernandez

- Castillo v. Sessions , 875 F.3d 199, 205 (5th Cir. 2017) (quoting Gomez

- Palacios v. Holder , 560 F.3d 354, 361 n.2 (5th Cir. 2009) (collecting cases) ). Case: 16-60602 Document: 00514570178 Page: 4 Date Filed: 07/25/2018