Bustamante v. Barr

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-60012
Summary Calendar

MARIA BUSTAMANTE, also known as Maria Bustamante Salgado,

Petitioner

v.

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

Respondent

Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A077 270 630

Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM:
*

Maria Bustamante, a native and citizen of Mexico, petitions this court
for review of a decision of the Board of Immigration Appeals (BIA) denying her
motion to reopen her removal proceedings. Bustamante filed a motion to
reopen and to terminate the removal proceedings arguing that, under Pereira
v. Sessions, 138 S. Ct. 2105 (2018), her original notice to appear, which lacked
a date and a time for her removal hearings, was defective and deprived the

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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
May 28, 2020

Lyle W. Cayce
Clerk
Case: 19-60012 Document: 00515432549 Page: 1 Date Filed: 05/28/2020

No. 19-60012
2
immigration court of jurisdiction. The BIA denied reopening, concluding that
Pereira did not apply to Bustamante’s proceedings.
To the extent that Bustamante seeks review of the BIA’s denial of sua
sponte reopening, we lack jurisdiction to review that discretionary decision.
See Hernandez-Castillo v. Sessions, 875 F.3d 199, 206 (5th Cir. 2017). We
review Bustamante’s challenge to the BIA’s denial of reopening on statutory
grounds under a deferential abuse of discretion standard. See Ramos-Portillo
v. Barr, 919 F.3d 955, 958 (5th Cir. 2019). We have rejected extending Pereira
beyond its narrow application in the context of cancellation of removal. See
Martinez-Lopez v. Barr, 943 F.3d 766, 770 (5th Cir. 2019); Pierre-Paul v. Barr,
930 F.3d 684, 689-90 (5th Cir. 2019), petition for cert. filed (U.S. Dec. 16, 2019)
(No. 19-779); Mauricio-Benitez v. Sessions, 908 F.3d 144, 148 n.1 (5th Cir.
2018), cert. denied, 139 S. Ct. 2767 (2019). Bustamante, therefore, fails to show
that the BIA reached an erroneous legal conclusion as to the impact of Pereira
on her motion to reopen. See Ramos-Portillo, 919 F.3d at 958. Moreover,
because the notice to appear did not deprive the immigration court of
jurisdiction, Bustamante cannot show a due process violation in her removal
proceedings on that premise. See Pierre-Paul, 930 F.3d at 690.
The petition for review is DISMISSED IN PART for lack of jurisdiction
to consider Bustamante’s challenge to the denial of sua sponte reopening and
DENIED IN PART as to Bustamante’s Pereira challenge based on the notice
to appear.

Case: 19-60012 Document: 00515432549 Page: 2 Date Filed: 05/28/2020