United States Court of Appeals

for the Fifth Circuit

No. 20-60818

Summary Calendar

Maria Gertrudis Marroquin-De Garcia; Lesly Stefany 

Garcia-Marroquin; Maria Abigail Garcia-Marroquin; 

Lidia Lisette Garcia-Marroquin, 

Petitioners,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A208 757 783

BIA No. A208 757 782

BIA No. A208 757 784

BIA No. A208 757 785

Before King, Costa, and Ho, Circuit Judges.

Per Curiam:*

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 10, 2022

Lyle W. Cayce

Clerk

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Maria Gertrudis Marroquin-De Garcia, with her three daughters, 

Lesley Stefany Garcia-Marroquin, Maria Abigail Garcia-Marroquin, and 

Lidia Lisette Garcia-Marroquin as riders, all natives and citizens of El 

Salvador, seek review of a decision of the Board of Immigration Appeals 

(BIA) denying an untimely motion to reopen. See 8 U.S.C. § 1229a(c)(7)(A), 

(C)(i); 8 C.F.R. § 1003.2(c)(2). We apply “a highly deferential abuse-ofdiscretion standard in reviewing the denial of a motion to reopen removal 

proceedings.” Hernandez-Castillo v. Sessions, 875 F.3d 199, 203 (5th Cir. 

2017).

Marroquin-De Garcia never referred to, much less argued, a change 

in country conditions, focusing instead on her counsel’s performance. 

Further, she did not cite the statutory or regulatory authority for reopening 

based on changed country conditions. The BIA’s treatment of the motion as 

resting on its stated basis is “not capricious, without foundation in the 

evidence, or otherwise so irrational that it is arbitrary rather than the result 

of any perceptible rational approach.” Hernandez-Castillo, 875 F.3d at 203-

04.

As to equitable tolling of the time limit for filing her motion to reopen, 

Marroquin-De Garcia does not identify error in the BIA’s conclusions that 

the immigration judge (IJ) informed Marroquin-De Garcia more than three 

months prior to the final hearing that all documents were required to be in 

English, and that Marroquin-De Garcia presented no evidence establishing 

that the testimony of any proposed witness likely would have resulted in a 

different outcome. In this court as well, Marroquin-De Garcia fails to

identify or describe the evidence, witnesses, or testimony that she would 

have adduced had the IJ administered the hearing differently; nor does she 

explain what lines of inquiry the IJ should have pursued or what evidence 

such further inquiry would have produced. Her vague contentions that 

counsel rendered ineffective assistance fail to show a reasonable probability 

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of a different outcome absent the errors. See Diaz v. Sessions, 894 F.3d 222, 

227-28 (5th Cir. 2018). As the BIA concluded, Marroquin-De Garcia thus 

failed to show prejudice from counsel’s alleged errors and she was not 

entitled to equitable tolling of the period for filing her motion to reopen. See 

id.; Mejia v. Barr, 952 F.3d 255, 259 (5th Cir. 2020).

We lack jurisdiction to consider the BIA’s denial of sua sponte

regulatory reopening. See Hernandez-Castillo, 875 F.3d at 206-07. Although 

there is a legal standard governing constitutional due process claims such as 

Marroquin-De Garcia raises, so that we have jurisdiction to consider such 

claims, no liberty interest exists in reopening. See Mejia v. Whitaker, 913 F.3d 

482, 490 (5th Cir. 2019). Marroquin-De Garcia’s due process claims are thus 

not cognizable in the context of a motion to reopen the immigration 

proceedings. See id.

For the first time before this court, Marroquin-De Garcia contends

that attorney Silvia Aguirre’s defective performance before the IJ caused 

Marroquin-De Garcia to miss the 90-day deadline to file her motion to 

reopen, that Aguirre also provided ineffective assistance in this court in 

relation to Marroquin-De Garcia’s original petition for review, that attorney

Clarissa Guajardo provided ineffective assistance when she failed to file a 

timely motion to reopen the matter in this court after dismissal of the petition 

for review, and that attorney Howard Douglas Daniel provided ineffective 

assistance as to the motion to reopen at issue in this matter by failing to raise 

or exhaust the issue of equitable tolling. Because Marroquin-De Garcia did 

not raise these claims before the BIA, she has failed to exhaust them and we 

lack jurisdiction to consider them. See 8 U.S.C. § 1252(d)(1); Fakhuri v. 

Garland, 28 F.4th 623, 627 (5th Cir. 2022).

For these reasons, the petition for review is DENIED in part and 

DISMISSED for lack of jurisdiction in part as to Marroquin-De Garcia’s 

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challenge to the BIA’s denial of sua sponte regulatory reopening and as to the 

challenges she has raised for the first time in her petition for review.

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