Orellana-Julian v. Barr

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-60493

LEONARDO ANDRES ORELLANA-JULIAN,

Petitioner,

v.

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

Respondent.

Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A089-716-964

Before WIENER, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM:*
Leonardo Andres Orellana-Julian asks us to reverse the Board of
Immigration Appeals’s determination that his motion to reopen is without
merit and to remand for reconsideration. For the same reasons articulated by
the BIA, we decline to do so and, therefore, deny his petition for review.

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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
March 17, 2020

Lyle W. Cayce
Clerk
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I
Orellana-Julian entered the United States illegally on December 1,
2002.
1
Nearly seven years later, the Government filed a Notice to Appear
(“NTA”) with the Immigration Court, charging Orellana-Julian with
inadmissibility under 8 U.S.C. § 1182(a)(6)(A)(i). To avoid removal, Orellana-
Julian submitted applications for asylum, withholding of removal, and relief
under the Convention Against Torture. On January 19, 2012, the Immigration
Judge (“IJ”) issued an oral decision denying each of Orellana-Julian’s
applications. Orellana-Julian failed to appeal the IJ’s decision until February
22, 2012, one day past the thirty-day filing deadline. Accordingly, the BIA
dismissed his appeal as untimely.
More than five years later, Orellana-Julian moved to reopen his case
based on changed personal circumstances.
2
The IJ denied the motion to reopen,
observing that a change in personal circumstances is not a change in country
conditions that would justify a motion to reopen. See Singh v. Lynch, 840 F.3d
220, 222–23 (5th Cir. 2016). Orellana-Julian timely filed an appeal to the BIA,
contesting the denial of his motion to reopen. While that appeal was pending,
the Supreme Court issued its ruling in Pereira v. Sessions, 138 S. Ct. 2105
(2018), holding that an NTA that omits the time and place of the removal
hearing is defective and does not trigger the “stop-time” rule. Based on this
ruling, Orellana-Julian filed a supplemental motion to reopen and requested
that his case be remanded based on his belief that he was eligible for

1
The record provides competing information, in some places stating that Orellana-
Julian entered the United States in 2001, not 2002. Because he cannot establish ten years
of residence regardless of if he entered in 2001 or 2002, we use the date of entry Orellana-
Julian provides in his briefing on appeal.
2
Orellana-Julian provided evidence that his sister had been kidnapped by a Maoist
group in Peru.
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cancellation of removal because his NTA was defective. The BIA dismissed the
appeal and denied his motion to reopen.
In its ruling, the BIA determined that Orellana-Julian’s motion to
reopen was untimely because the IJ’s decision became final on February 21,
2012, but Orellana-Julian did not submit his motion until May 31, 2017, five
years after the ninety-day filing period had passed. Although an untimely
request to reopen may be excused when a petitioner shows changed
circumstances in his country of origin, 8 U.S.C. § 1229a(c)(7)(C)(ii), the BIA
reiterated the IJ’s ruling that a change in personal circumstances does not
constitute a change in country conditions that would permit an out-of-time
filing.
Next reviewing Orellana-Julian’s motion to reopen to apply for
cancellation of removal, the BIA likewise concluded that the motion was both
untimely and number-barred. It also concluded that the motion lacked merit,
observing that an NTA that is deficient because it fails to include the time and
place of an alien’s initial removal hearing is remedied by the subsequent
service of a Notice of Hearing that provides the missing information. See In re
Mendoza-Hernandez, 27 I & N Dec. 520, 529 (BIA 2019). Because the
Immigration Court mailed a Notice of Hearing with the requisite information
on February 25, 2009, the BIA held that the stop-time rule applied as of that
date and Orellana-Julian could not establish the ten years of residence
necessary to be eligible for cancellation of removal.
3

3
The BIA incorrectly stated that the remedial Notice of Hearing was sent on March
12, 2009; the record reflects that the Immigration Court first mailed Orellana-Julian a
remedial Notice of Hearing on February 25, 2009.
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Orellana-Julian now appeals to this court, arguing that the BIA erred in
denying his motion to reopen because he is eligible for cancellation of removal
and he was denied due process in his removal proceedings.
4

II
Because of the “strong public interest in bringing litigation to a close,”
I.N.S. v. Abudu, 485 U.S. 94, 107 (1988), we review the BIA’s denial of a motion
to reopen under the “highly deferential” abuse-of-discretion standard. Lugo-
Resendez v. Lynch, 831 F.3d 337, 340 (5th Cir. 2016). The BIA abuses its
discretion “when it issues a decision that is capricious, irrational, utterly
without foundation in the evidence, based on legally erroneous interpretations
of statutes or regulations, or based on unexplained departures from
regulations or established policies.” Barrios-Cantarero v. Holder, 772 F.3d
1019, 1021 (5th Cir. 2014). We review the BIA’s conclusions of law de novo, but
we defer “to the BIA’s interpretation of immigration regulations if that
interpretation is reasonable.” Id.
III
A
The BIA did not abuse its discretion in denying Orellana-Julian’s motion
to reopen for consideration of his eligibility for cancellation of removal.
5

4
Orellana-Julian does not challenge the BIA’s denial of his motion to reopen for
changed personal circumstances, so this issue has been forfeited. See, e.g., Cinel v. Connick,
15 F.3d 1338, 1345 (5th Cir. 1994) (“An appellant abandons all issues not raised and argued
in its initial brief on appeal.”).
5
Orellana-Julian also argues that we must remand to the BIA because the BIA failed
to address whether his time and numerical limitations for filing a motion to reopen were
equitably tolled. Because we agree with the BIA’s determination that Orellana-Julian’s
motion to reopen fails on the merits, it is unnecessary to remand on the issue of equitable
tolling. See I.N.S. v. Bagamasbad, 429 U.S. 24, 25–26 (1976) (“As a general rule courts and
agencies are not required to make findings on issues the decision of which is unnecessary to
the results they reach.”)
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Orellana-Julian cannot satisfy the statutory requirements for such
cancellation. To be eligible for cancellation of removal, an alien must
demonstrate, among other things, that he “has been physically present in the
United States for a continuous period of not less than 10 years.”
8 U.S.C. § 1229b(b). Under the stop-time rule, an alien’s continuous presence
is interrupted when he “is served a notice to appear under 1229(a).” Id. §
1229b(d)(1)(A). Orellana-Julian, relying on the Supreme Court’s decision in
Pereira, argues that he was never served with proper notice because his NTA
failed to include the time and place of his removal hearing. See 138 S. Ct. at
2113–14. Therefore, he insists, the stop-time rule was not triggered, and he
satisfied the requisite ten years of continuous presence.
What Orellana-Julian fails to properly account for, however, is that the
Immigration Court subsequently served him with a Notice of Hearing that
provided the information missing from his NTA. In Yanez-Pena v. Barr, this
same panel held that a subsequent notice of hearing that includes the time and
place of the initial removal hearing cures a deficient NTA and triggers the stop-
time rule. ___ F. 3d ___, 2020 WL 960829, at *5 (5th Cir. Feb. 28, 2020); see
also Pierre-Paul v. Barr, 930 F.3d 684, 690–91 (5th Cir.), petition for cert. filed,
(U.S. Dec. 16, 2019) (No. 19-779). Therefore, when the Immigration Court
mailed the remedial Notice of Hearing on February 25, 2009, the stop-time rule
was triggered, and his continuous physical presence came to an end. Having
entered the United States in 2002, Orellana-Julian did not satisfy the ten-year
presence requirement to be eligible for cancellation of removal.
B
Orellana-Julian further argues that he was ordered removed without
due process because he did not receive adequate notice to appear for his
removal hearing. We have held that “due process requires that an alien be
provided notice of the charges against him, a hearing before an executive or
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administrative tribunal, and a fair opportunity to be heard.” Okpala v.
Whitaker, 908 F.3d 965, 971 (5th Cir. 2018). In addition to showing that these
requirements were not satisfied, an alien will only receive relief if he also
demonstrates that the violation resulted in “substantial prejudice.” Id.
As explained above, Orellana-Julian was served with adequate notice of
his removal proceedings on February 25, 2009 and was granted the
opportunity to be heard. But even if adequate notice had not been provided,
“no liberty interest exists in a motion to reopen, and therefore due process
claims are not cognizable in the context of reopening proceedings.” Mejia v.
Whitaker, 913 F.3d 482, 490 (5th Cir. 2019). Therefore, Orellana-Julian’s due
process claims are without merit, and the BIA did not abuse its discretion in
denying his motion to reopen.
* * *
The petition for review is DENIED.
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