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 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.

United States Court of Appeals

Fifth Circuit

FILED

July 23, 2018

Lyle W. Cayce

Clerk

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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 June 2004. The 

Border Patrol briefly 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. Both 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 later, the immigration court sent a 

notice of hearing to that address via regular mail. 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 later, 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 decision and the BIA 

affirmed. This petition for review followed. 

II.

We have jurisdiction to “review a final order of removal only if . . . the 

alien has exhausted all administrative remedies available to the alien as of 

right.” 8 U.S.C. § 1252(d)(1). See also Wang v. Ashcroft, 260 F.3d 448, 452 (5th 

Cir. 2001). “Petitioners fail to exhaust their administrative remedies as to an 

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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, 562 F.3d 314, 318 (5th Cir. 2009).

III.

Before this Court, Hernandez-Andrade claims that ordering her removal 

in absentia violated 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. While not presenting 

constitutional claims to the BIA may be excused, see 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 has 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 could 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 is non-exhausted and we lack 

jurisdiction.1

 

1 It is difficult to see how Hernandez-Andrade could succeed on her due process 

arguments 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,” 

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IV.

Hernandez-Andrade’s Petition for Review is DISMISSED. 

 

and have done so even “assuming arguendo . . . that [the petitioner] could establish 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)).

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