Yos-Perez, et al v. Barr

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-60453
Summary Calendar

JOSE LUIS YOS-PEREZ; DANIELLA ELIZABETH YOS-PEREZ; JUAN
DAVID YOS-PEREZ,

Petitioners,

v.

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

Respondent.

Petition for Review of an Order of the
Board of Immigration Appeals
BIA Nos. A206 771 137
BIA Nos. A206 771 138
BIA Nos. A206 771 139

Before KING, GRAVES and WILLETT, Circuit Judges.
PER CURIAM:
*

Jose Luis Yos-Perez, Daniella Elizabeth Yos-Perez, and Juan David Yos-
Perez seek review of the Board of Immigration Appeals (BIA) order denying
their motion to reconsider the BIA’s dismissal of their appeal as untimely. A
denial of a motion to reconsider is reviewed under a “highly deferential abuse-

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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 16, 2020

Lyle W. Cayce
Clerk
Case: 19-60453 Document: 00515384585 Page: 1 Date Filed: 04/16/2020

No. 19-60453
2
of-discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005).
Under this standard, we will “affirm the BIA’s decision as long as it is not
capricious, without foundation in the evidence, or otherwise so irrational that
it is arbitrary rather than the result of any perceptible rational approach.”
Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009).
Petitioners contend that the BIA has the authority to extend the 30-day
time limit in which to consider an untimely-filed notice of appeal under unique,
exceptional, or extraordinary circumstances; that the BIA abused its discretion
by failing to consider whether petitioners’ reasons for the untimely notice of
appeal amounted to such circumstances; and that the circumstances of their
case rise to that level based on counsel’s ineffective assistance. They argue that
they were not required to adhere to the procedural requirements of Matter of
Lozada, 19 I. & N. Dec. 637 (BIA 1988)—the grounds upon which the BIA
denied the motion to reconsider—because an untimely filing which results
from ineffective assistance of counsel, on its face, warrants reopening a case.
Contrary to the petitioners’ argument, strict compliance with Matter of
Lozada is mandatory in this circuit. See Hernandez-Ortez v. Holder, 741 F.3d
644, 647-48 (5th Cir. 2014). It is undisputed that that they did not comply with
those procedural requirements. Accordingly, petitioners have not
demonstrated the BIA’s decision to deny their motion for reconsideration was
an abuse of discretion. See Zhao, 404 F.3d at 303.
PETITION DENIED.
Case: 19-60453 Document: 00515384585 Page: 2 Date Filed: 04/16/2020