Monica Arellano Esquivel, et al v. William Barr, U

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 18-60891
Summary Calendar

MONICA ARELLANO ESQUIVEL; JENNIFER ARELLANO ARELLANO,

Petitioners

v.

WILLIAM P. BARR, U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A208 118 662
BIA No. A208 118 663

Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM:
*

Monica Arellano Esquivel and her daughter, Jennifer Arellano Arellano,
are natives and citizens of Mexico. They petition for review of a decision of the
Board of Immigration Appeals (BIA) dismissing their appeal from the order of
an immigration judge (IJ) finding them removable, and denying asylum,
withholding of removal, and protection under the Convention Against Torture

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
April 14, 2020

Lyle W. Cayce
Clerk
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No. 18-60891
2
(CAT). Arellano Esquivel and her daughter first contend, in reliance on Pereira
v. Sessions, 138 S. Ct. 2105 (2018), that the immigration court lacked
jurisdiction because the omission in the Notice to Appear (NTA) of the time
and date of the removal hearing rendered the NTA invalid. We have
determined, however, that Pereira addressed only the “‘narrow question’”
whether an NTA that omits the time or place of the initial hearing triggers the
statutory stop-time rule for cancellation of removal, Mauricio-Benitez
v. Sessions, 908 F.3d 144 (5th Cir. 2018) (quoting Pereira, 138 S. Ct. at 2110),
cert. denied, 139 S. Ct. 2767 (2019), and we have declined to extend the rule in
Pereira beyond the stop-time rule context, see Pierre-Paul v. Barr, 930 F.3d
684, 688-89 (5th Cir. 2019), petition for cert. filed (U.S. Dec. 16, 2019) (No. 19-
779). Here, the NTA served on Arellano Esquivel, like the NTA served on her
daughter, specified the nature of and the legal authority for the proceedings,
and it provided a warning regarding in absentia removal. The NTA was
therefore not defective. See id. at 689-90.
The petitioners challenge the IJ’s denial of their request to present the
testimony of Arellano Esquivel’s husband, arguing that the IJ’s refusal to allow
the testimony violated their due process and statutory rights. However, the
petitioners have failed to make the required showing of substantial prejudice.
See Anwar v. I.N.S., 116 F.3d 140, 144 (5th Cir. 1997); Molina v. Sewell, 983
F.2d 676, 678 (5th Cir. 1993).
Next, Arellano Esquivel and her daughter challenge the BIA’s
determination that a statement by the IJ regarding Arellano Esquivel’s
membership in a particular social group was a “slip of the tongue.” Because
they did not raise this argument in a motion to reopen or reconsider, the issue
is unexhausted and must be dismissed. See Omari v. Holder, 562 F.3d 314,
318, 320-21 (5th Cir. 2009); Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004).
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Arellano Esquivel and Arellano Arellano also argue that the IJ and the
BIA did not meaningfully consider their claim based on imputed political
opinion. They did not raise such a claim on appeal to the BIA, and to the extent
that they complain regarding the BIA’s analysis of the claim, they once again
assert an issue that they failed to raise in a motion to reopen or a motion for
reconsideration. The petitioners have thus failed to exhaust this issue. See
Omari, 562 F.3d at 320-21.
Finally, because Arellano Esquivel and her daughter do not present any
argument regarding protection under the CAT, they have abandoned the issue.
See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
The joint petition for review is DENIED IN PART and DISMISSED IN
PART.
Case: 18-60891 Document: 00515380955 Page: 3 Date Filed: 04/14/2020