Angel Lemus-Herrera v. Eric Holder, Jr., No. 10-60420 (5th Cir. 2010)
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Case: 10-60420 Document: 00511331621 Page: 1 Date Filed: 12/23/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 10-60420 Summary Calendar December 23, 2010 Lyle W. Cayce Clerk ANGEL GABRIEL LEMUS-HERRERA, Petitioner v. ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A099 533 123 Before WIENER, PRADO, and OWEN, Circuit Judges. PER CURIAM:* Angel Gabriel Lemus-Herrera (Lemus), a native and citizen of El Salvador, was ordered deported in absentia by an immigration judge (IJ) when Lemus failed to appear at his scheduled hearing in February 2006. Lemus filed a motion to reopen in July 2009, which the IJ denied. The Board of Immigration Appeals (BIA) affirmed the IJ s decision without opinion. Lemus has timely petitioned for review of the BIA s order. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. Case: 10-60420 Document: 00511331621 Page: 2 Date Filed: 12/23/2010 No. 10-60420 We review the denial of a motion to reopen under a highly deferential abuse-of-discretion standard. Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). The BIA s decision must be upheld as long as it is not 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. Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006) (internal quotation marks and citation omitted). Lemus contends that the in absentia deportation order was improperly issued because he did not receive notice of his hearing. He asserts that his failure to receive the notice of his hearing was due to error on the part of immigration officials or the immigration court. Because Lemus failed to present these issues to the BIA they are unexhausted, and we lack jurisdiction to consider them. See Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004) (per curiam); Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th Cir. 2001). Noting the summary disposition of his appeal, Lemus argues that the BIA did not sufficiently articulate the reasons for denying relief. The BIA is permitted to affirm, without opinion, a decision of an immigration judge. See 8 C.F.R. ยง 1003.1(e)(4). We have previously determined that the BIA s summary affirmance procedures do not deprive this court of a basis for judicial review and that the procedures do not violate due process. Soadjede v. Ashcroft, 324 F.3d 830, 832-33 (5th Cir. 2003) (per curiam). Lemus has failed to show error. The petition for review is DENIED. 2
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