Leon-Savillon v. Barr

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-60238
Summary Calendar

TURBIDES LEON-SAVILLON,

Petitioner

v.

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

Respondent

Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A079 033 621

Before BARKSDALE, HAYNES, and ENGELHARDT, Circuit Judges.
PER CURIAM:
*

Turbides Leon-Savillon, a native and citizen of Honduras, seeks review
of the Board of Immigration Appeals’ (BIA) denying his motion to remand and
dismissing his appeal of an Immigration Judge’s (IJ) denying his motion to
reopen removal proceedings and to rescind his in absentia removal order.
Leon contends his notice to appear (NTA), which he was provided in
April 2001, was defective for failing to include the time and place of his removal

*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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
February 12, 2020

Lyle W. Cayce
Clerk
Case: 19-60238 Document: 00515307794 Page: 1 Date Filed: 02/12/2020

No. 19-60238
2
proceedings, relying on Pereira v. Sessions, 138 S. Ct. 2105, 2113–14 (2018) (so
holding for purposes of triggering 8 U.S.C. § 1229b(d)(1)(A)’s stop-time rule for
continuous presence calculations). Consequently, according to Leon, the
immigration court never obtained jurisdiction over him under 8 U.S.C.
§ 1229(a)(1), and the IJ’s ordering his removal, in absentia, pursuant to
§ 1229a(b)(5)(A), was impermissible.
Further, Leon asserts the IJ and BIA failed to properly consider his
sworn statement that he provided an address when taken into custody upon
entering the United States and challenges the BIA’s finding the record
evidence directly contradicts this assertion.
Finally, he contends: the Government should have obtained his address
by calling the telephone number he provided; he was not provided a form on
which to provide his address; and the BIA failed to consider whether evidence
showed his Form I-213 (showing an address was not provided) was incorrect.
For obvious reasons, the denial of a motion to reopen is reviewed under
“a highly deferential abuse-of-discretion standard”. Gomez-Palacios v. Holder,
560 F.3d 354, 358 (5th Cir. 2009) (citation omitted). Therefore, the BIA’s
decision must be upheld unless it is “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”. Zhao v.
Gonzales, 404 F.3d 295, 304 (5th Cir. 2005) (citation omitted). “Furthermore,
we must use the substantial evidence test to review the BIA’s factual
conclusion[s] . . .”. Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994) (per curiam)
(citation omitted). Under this standard, “we may not reverse the BIA’s factual
determinations unless we find . . . the evidence compels it”. Id. (citations
omitted).
Case: 19-60238 Document: 00515307794 Page: 2 Date Filed: 02/12/2020

No. 19-60238
3
Concerning Leon’s claim about his NTA’s being defective, our court’s
precedent forecloses the application of Pereira in this instance. See Pierre-Paul
v. Barr, 930 F.3d 684, 688–90 (5th Cir. 2019) (holding Pereira limited to the
narrow stop-time rule context), petition for cert. filed, 88 U.S.L.W. 3212 (U.S.
16 Dec. 2019) (No. 19-779). Because Leon’s NTA specified the nature of the
proceedings, noted their legal authority, and provided a warning regarding in
absentia removal, it was not defective. See id. at 690.
For Leon’s statutory claims, an alien who does not attend a removal
proceeding, after being provided proper notice, shall be ordered removed in
absentia “if the [Government] establishes by clear, unequivocal, and convincing
evidence that the written notice was so provided and that the alien is
removable”. 8 U.S.C. § 1229a(b)(5)(A). Nevertheless, “the [G]overnment need
not establish that written notice was provided in order to obtain an in absentia
removal order if the alien . . . failed to provide a current mailing address”.
Gomez-Palacios, 560 F.3d at 358 (italics added) (citing 8 U.S.C.
§ 1229a(b)(5)(A)–(B)); see also 8 C.F.R. § 1003.18(b) (“No such notice [regarding
the time, place, and date of a removal hearing] shall be required for an alien
not in detention if the alien has failed to provide [an] address . . .”.).
The NTA was personally served on Leon; it stated he would be required
to appear before an IJ at a time and date to be set; and, as discussed, it was
not otherwise defective. The NTA and the Form I-213 show Leon was unable
to provide an address to immigration authorities. Although the IJ’s decision
did not address Leon’s above-referenced sworn statement, the BIA considered
it and determined the other record evidence did not support it. Consequently,
the evidence does not compel a conclusion contrary to the finding that Leon did
not provide an address to immigration authorities, which negated any notice
Case: 19-60238 Document: 00515307794 Page: 3 Date Filed: 02/12/2020

No. 19-60238
4
requirement. See Gomez-Palacios, 560 F.3d at 358 (citation omitted); 8 C.F.R.
§ 1003.18(b).
Additionally, in order for our court to have jurisdiction over a claim, an
alien must exhaust his available remedies before the BIA. See Wang v.
Ashcroft, 260 F.3d 448, 452–53 (5th Cir. 2001) (citations omitted). Because
Leon did not raise his remaining claims before the BIA, we lack jurisdiction to
review them. See id. (citations omitted).
And, although Leon submitted a completed application for asylum to the
BIA, he fails here to address any claim that the proceedings should have been
reopened because he was eligible for asylum, withholding of removal,
protection under the Convention Against Torture, or cancellation of removal.
He has therefore abandoned any such challenge. See Soadjede v. Ashcroft, 324
F.3d 830, 833 (5th Cir. 2003) (per curiam) (citation omitted).
DISMISSED IN PART; DENIED IN PART.
Case: 19-60238 Document: 00515307794 Page: 4 Date Filed: 02/12/2020