IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-60324

Summary Calendar

GRACIA MARIA BARAHONA-MIRA,

Petitioner

v.

JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A097 739 452

Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Gracia Maria Barahona-Mira, a native and citizen of El Salvador, 

petitions for review of the decision of the Board of Immigration Appeals (BIA) 

dismissing her appeal of an order of an Immigration Judge (IJ) denying her 

motion to reopen removal proceedings and to rescind an earlier in absentia

removal order. She contends that she did not receive proper notice of the 

removal hearing because it was not addressed to her but allegedly to her 

 

* 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

June 13, 2018

Lyle W. Cayce

Clerk

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No. 17-60324

2

parent. Because she was not under 14 years of age at the time, Barahona-Mira 

contends that service on a parent was insufficient to satisfy the statutory 

requirements of proper service. 

In reviewing the denial of a motion to reopen removal proceedings, we 

apply a deferential abuse of discretion standard. Hernandez-Castillo v. 

Sessions, 875 F.3d 199, 203 (5th Cir. 2017). The BIA’s decision must be upheld 

as 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.” Singh v. Gonzales, 436 F.3d 484, 

487 (5th Cir. 2006) (internal quotation marks and citation omitted). We review 

the BIA’s factual findings under the substantial evidence test, meaning that 

we may not overturn the BIA’s factual findings unless the evidence compels a 

contrary conclusion. Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994). 

The address Barahona-Mira provided to the Department of Homeland 

Security (DHS) included her name, as well as “c/o Gloria A. Iraheta.” 

Substantial evidence supports the BIA’s finding that the hearing notice was 

mailed to this address. See id. The BIA found that service thus complied with 

the statute and applicable regulations, citing 8 C.F.R. § 103.8 (previously 

codified at 8 C.F.R. § 103.5a (2003)) and 8 U.S.C. § 1229(c). The evidence does 

not compel a contrary conclusion. See Chun, 40 F.3d at 78; see also 8 U.S.C. 

§ 1229a(b)(5)(A), (B). Also, substantial evidence supports the BIA’s finding 

that Barahona-Mira failed to rebut the presumption of delivery of the notice. 

See Chun, 40 F.3d at 78; In re M-R-A-, 24 I. & N. Dec. 665, 672-73 (BIA 2008).

For the first time before this court, Barahona-Mira argues that the 2003 

Notice to Appear (NTA) failed to inform her in Spanish of the consequences of 

failing to report an address change. We do not have jurisdiction to review this

claim. See Ramos-Torres v. Holder, 637 F.3d 544, 547 (5th Cir. 2011). 

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Barahona-Mira complains that the BIA did not consider evidence 

demonstrating the hardship her husband would suffer if she was deported, as 

well as evidence establishing her eligibility for an adjustment of status. The 

IJ, with whom the BIA agreed, noted this contention but correctly determined 

that Barahona-Mira’s motion to reopen based on these circumstances was 

untimely. See 8 U.S.C. § 1229a(c)(7)(C)(i). 

We do not have jurisdiction to review Barahona-Mira’s apparent 

argument for equitable tolling of the deadline because she did not raise this 

argument before the BIA. See Ramos-Torres, 637 F.3d at 547. Additionally,

we do not have jurisdiction to review a challenge to the BIA’s decision declining 

to exercise its sua sponte authority to reopen Barahona-Mira’s removal 

proceedings. See Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249-50 (5th Cir. 

2004). Lastly, Barahona-Mira’s argument that the BIA violated her due 

process rights by not reopening her removal proceedings so that she could 

adjust her status is unavailing “because there is no liberty interest at stake in 

a motion to reopen due to the discretionary nature of the relief sought.” See 

Gomez-Palacios v. Holder, 560 F.3d 354, 361 n.2 (5th Cir. 2009). Accordingly, 

Barahona-Mira’s petition for review is DENIED in part and DISMISSED in 

part for lack of jurisdiction. 

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