Sierra-Cardona v. Ashcroft

* 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that this opinion should not be published and is not precedent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
F I L E D
March 23, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-60660
Summary Calendar
JAIME ALEJANDRO SIERRA-CARDONA,
Petitioner,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
--------------------
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A29 320 381
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Before JOLLY, WIENER, and PICKERING, Circuit Judges.
PER CURIAM:*
Jaime Alejandro Sierra-Cardona (“Sierra”), a native and
citizen of El Salvador, has filed a petition for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from the denial of his motion to reopen the 1990 deportation
proceedings that resulted in an order of deportation being
entered in absentia against him. Sierra seeks to reopen the
proceedings so that he can apply for relief from deportation
pursuant to the Nicaraguan Adjustment and Central American Relief

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No. 03-60660
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Act (“NACARA”). He argues that: (1) because he did not actually
receive notice of the deportation hearing, there was reasonable
cause for his failure to appear, and (2) he is eligible for
relief under NACARA.
Sierra also raises new factual allegations and claims before
this court, namely: (1) whether the order to show case issued in
his case was valid, (2) whether he was required to notify the
immigration judge of any changes to his address, and (3) whether
there was evidence in the record concerning his compliance with
his obligation to notify the Attorney General of any changes in
his address. This court will not consider issues or factual
allegations that were not presented below. See Yahkpua v. INS,
770 F.2d 1317, 1320 (5th Cir. 1985); see also Varnado v. Lynaugh,
920 F.2d 320, 321 (5th Cir. 1991).
Sierra had an obligation to notify the Attorney General of
any changes to his address. 8 U.S.C. § 1305(a) (1990). Notice
of Sierra’s deportation hearing was properly mailed to his last
known address. See United States v. Estrada-Trochez, 66 F.3d
733, 735-36 (5th Cir. 1995). The notice was returned as
undeliverable, however, because Sierra moved without providing a
forwarding address. Sierra has not shown any error in the BIA’s
determination that lack of notice, under these circumstances,
does not constitute reasonable cause for failure to appear.
See Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001).

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No. 03-60660
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Pursuant to 8 C.F.R. § 1003.43, an alien seeking to reopen
deportation proceedings in order to seek NACARA relief was
required to file a motion to reopen “no later than September 11,
1998.” Sierra’s motion was filed more than three years after
that date. The regulation does not provide for extending or
tolling the deadline for filing a motion to reopen for any
reason. Therefore, Sierra has not demonstrated that the BIA
erred when it determined that there were no grounds to grant his
untimely motion to reopen the deportation proceedings.
See Lopez-Gomez, 263 F.3d at 444.
For the foregoing reasons, Sierra’s petition for review is
DENIED.

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