IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH 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 removal

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 exercise its sua sponte

authority to reopen those proceedings. Because that authority is discretionary,

United States Court of Appeals

Fifth Circuit

F I L E D

June 24, 2011

Lyle W. Cayce

Clerk

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.

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No. 10-60885

our court lacks jurisdiction to review this claim. 8 C.F.R. § 1003.2(a);

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

___, 2011 WL 1529750 (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 claim. Nolos v. Holder, 611 F.3d 279, 281

(5th Cir. 2010) (citing Kucana v. Holder, 130 S. Ct. 827, 838-40 (2010)). The

BIA’s denial is reviewed under a “highly deferential abuse-of-discretion

standard”. Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005) (citation

omitted). Under that standard, 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 approach”. 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 changed circumstances arising

in the country of nationality . . . , if such evidence is material and was not

available and could not have been discovered or presented at the previous

hearing”. 8 C.F.R. § 1003.2(c)(3)(ii). Moreover, the motion to reopen “must be

accompanied 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,

inter alia, that Bustillo failed: to produce evidence of changed country

conditions; and to submit an asylum application with supporting documentation

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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 the application because her impending

deportation required immediate action. The BIA, however, did not violate her

due-process 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. 2009).

DISMISSED in part; DENIED in part.

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