Mercado-Alvarez v. Garland

Case: 21-60445 Document: 00516418564 Page: 1 Date Filed: 08/03/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals

Fifth Circuit FILED

August 3, 2022

No. 21-60445

Summary Calendar Lyle W. Cayce

Clerk Marco Antonio Mercado-Alvarez,

Petitioner, versus

Merrick Garland, U.S. Attorney General,

Respondent.

Petition for Review of an Order of the Board of Immigration Appeals Agency No. A098 895 650

Before Barksdale, Elrod, and Haynes, Circuit Judges.

Per Curiam:*

Marco Antonio Mercado-Alvarez, a native and citizen of Guatemala, was ordered removed in absentia in 2006. He petitions for review of the Board of Immigration Appeals’ (BIA) dismissing his appeal from the immigration judge’s (IJ) denial of his 2018 motion to reopen his removal

Case: 21-60445 Document: 00516418564 Page: 2 Date Filed: 08/03/2022

No. 21-60445 proceeding. Mercado contends the BIA erred by declining to consider whether he was entitled to equitable tolling of the statutory deadline for filing his motion because he did not present that issue to the IJ.

The denial of a motion to reopen is reviewed for obvious reasons “under a highly deferential abuse-of-discretion standard”. Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006) (citation omitted). Under that standard, our court may not disturb the BIA’s decision unless it is “capricious, without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach”. Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009). Questions of law are reviewed de novo; factual findings, for substantial evidence. Id. The IJ’s decision is considered only to the extent it influenced the BIA. Id.

“This court has long held that the BIA need not consider an issue raised for the first time on appeal.” Cantarero-Lagos v. Barr, 924 F.3d 145, 153 (5th Cir. 2019) (citation omitted). Mercado fails to show it was erroneous or otherwise irrational for the BIA to not consider his issue. See Gomez- Palacios, 560 F.3d at 358.

DENIED.