### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-60284 Summary Calendar

NELSON JAVIER GARCIA-RIVERA,
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. A099 672 593

Before KING, CLEMENT, and HIGGINSON, Circuit Judges. PER CURIAM: * In June 2006, an immigration judge ( I J ) e ntered an in absentia order removing Nelson Javier Garcia-Rivera to his native El S alvador. More than five years l a t e r , Garcia-Rivera m oved to rescind the removal order and reopen his im m igration proceedings. The IJ d e nied t he motion, a nd the Board of Immigration Appeals ( BIA) dismissed Garcia-Rivera’s appeal and d enied his motion to remand his case t o the I J. Garcia-Rivera now petitions for review of the BIA’s decision. U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D May15, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-60284 Document: 00512242657 Page: 1 Date Filed: 05/15/2013No. 12-60284

In his petition for review, Garcia-Rivera asserts that the 180-day deadline for filing a motion to reopen pursuant to 8 U.S.C. § 1229a(b)(5)(C)(i) should be equitably tolled based on h i s a s s ertions that he received ineffective assistance of counsel a nd that h e had been defrauded by a California notary. In this circuit, such an argument is construed as a challenge t o the BIA’s refusal t o exercise its discretion to sua sponte r eopen the proceeding under 8 C.F.R. § 1003.2(a). See Ramos-Bonilla v. Mukasey , 543 F.3d 216, 219-20 (5th Cir. 2008). Accordingly, we lack jurisdiction to review this purely discretionary decision. Id. Garcia-Rivera also reiterates h is contention that he was not p roperly served with the n otice to appear (NTA) because he l a cked t h e mental stability to comprehend the contents of the N TA

. T he record contains e vidence that Garcia-Rivera received both oral and w ritten notice of his immigration hearing and the consequences of failing to ap p e a r for that hearing as required by 8 U.S.C. § 1229(a) ( 1 )

. There i s also evidence that the oral notice was given in Spanish and that G arcia-Rivera stated to t he Border Patrol agent that he understood the not i c e . G a r cia-Rivera has not shown t hat the BIA abused its discretion in determining that reopen i n g was n ot warranted under § 1229a(b)(5)(C)(ii). See Gomez-Palacios v. Holder , 560 F.3d 354, 358 (5th Cir. 2009). The petition filed by Garcia-Rivera d oes n ot i n clude any challenge to the BIA’s d enial of his motion to remand, its d e termination that h is motion to reopen
was untimely under 8 U.S.C. § 1229a(b)(5)(C)(i) , or its determination that he had not shown a change in countr y c o n d i tions that warranted reopening under § 1229a(c)(7)(C)(ii). He has thus w aived those i ssues. See Thuri v. As hcroft , 380 F.3d 788, 793 (5th Cir. 2004). PETITION FOR REVIEW DISMISSED IN PART AND DENIED IN PART.

2 Case: 12-60284 Document: 00512242657 Page: 2 Date Filed: 05/15/2013