### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 10-60885 Summary Calendar

ZOILA HORTENCIA BUSTILLO-MARTINEZ,
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. A078 176 142

Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges. PER CURIAM: * Zoila Hortencia Bustillo-Martinez, a native and citizen of Honduras, petitions for review of the Board of Immigration Appeals’ (BIA) dismissing her appeal from the immigration judge’s denial of her motion to reopen re m oval proceedings. Bustillo’s motion to reopen was filed nine years after she failed to appear for her hearing and was ordered removed in absentia. Bustillo first contends the BIA erred by failing to exe rcise its sua sponte authority to reopen those proceedings. Because that authority is discretionary, U n i te d S ta te s C o u rt o f Ap p ea l s

F i ft h C i rc u i t 

### F I L E D June24 , 20 11 Lyle W . Cayce Clerk

Purs uant to 5 TH C IR

. R. 47.5 , the court hasd ete rm inedthat thisop inion sho uld not * be publish ed and is not pr ece dent excep t unde r the lim ite d circum st ance s se t forth in 5 TH C IR

. R. 47.5 .4. Case: 10-60885 Document: 00511520070 Page: 1 Date Filed: 06/24/2011No. 10-60885

o u r court lacks jurisdiction to review this claim. 8 C.F.R. § 100 3

. 2 ( a) ; Lopez-Dubon v. Holder , 609 F.3d 642, 647 (5th Cir. 2010), cert. denied , ___ S. Ct.

___, 2011 WL 15297 5 0 ( 2011); Enriquez-Alvarado v. Ashcroft , 371 F.3d 246, 249-50 (5th Cir. 2004). Bustillo also maintains the BIA abused its discretion by declining to reopen her removal proceedings, pursuant to 8 C.F.R. § 1003.2(c), to permit her to pursue an asylum application based on changed conditions in Honduras. Our court has jurisdiction to review this c l ai m . Nolos v. Holder , 611 F.3d 279, 281 (5th Cir. 2010) (citing Kucana v. Holder , 130 S. Ct. 827, 838- 4 0 ( 2 0 1 0)). The BIA’s denial is reviewed under a “highly deferential abuse-of-discretion standard”. Zhao v. Gonzales , 404 F.3 d 2 9 5 , 303 (5th Cir. 2005) (citation omitted). Under that standar d , the decision is upheld “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 app ro ach”. Id. at 304 (citation and internal quotation marks omitted). Bustillo was required to file her motion to reopen no later than 180 days after the date of the removal order. 8 C.F.R. § 1003.23(b)(4)(ii) (time limitation for motion to reopen in absentia removal order). That time limitation does not apply, however, where the motion is “based on c h a n g ed circumstances arising in the country of nationality

. . . , if such evi d e n c e is material and was not available and could not have been discovered or pr e sented at the previous hearing”. 8 C.F.R. § 1003.2(c)(3)(ii). Moreover, the motion to re open “must be

acco m panied by the appropriate application for relief and all supporting documentation”. 8 C.F.R. § 1003.2(c)(1). In its order regarding not reopening removal proceedings, the BIA noted, i n ter alia , that Bustillo failed: to produce evidence of changed country conditions; and to submit an asylum application with supporting documentation

2 Case: 10-60885 Document: 00511520070 Page: 2 Date Filed: 06/24/2011No. 10-60885

establishing her eligibility for relief. Accordingly, the BIA did not abuse its discretion. Finally, Bustillo contends the BIA violated her due-process rights by basing its dismissal on her failure to submit an asylum application. She maintains she had no time to submit th e a pplication because her impending deportation required immediate action. The BIA, however, did not violate her du e - p r o cess rights because “there is no liberty interest at stake in a motion to reopen due to the discretionary nature of the relief sought”. Gomez-Palacios v. Holder , 560 F.3d 354, 361 n.2 (5th Cir. 2 009). DISMISSED in part; DENIED in part.

3 Case: 10-60885 Document: 00511520070 Page: 3 Date Filed: 06/24/2011