     Case: 12-60713       Document: 00512310858         Page: 1     Date Filed: 07/17/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 17, 2013
                                     No. 12-60713
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ALVARO HERNANDEZ-DOMINGUEZ, also known                                           as    Saul
Dominguez-Hernandez, also known as Alvaro Hernandez,

                                                  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. A094 859 787


Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Alvaro Hernandez-Dominguez (Hernandez) petitions this court for review
of the decision of the Board of Immigration Appeals (BIA) denying his motion to
reopen following the denial of his application for cancellation of removal.
Although he raises myriad challenges to the determinations made by the
immigration judge (IJ) and the BIA with respect to both the denial of the motion
to reopen and the underlying denial of his application for cancellation, the only


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 12-60713

petition for review before this court is that challenging the denial of the motion
to reopen. Accordingly, this court’s jurisdiction is limited to those arguments
relating to the denial of the motion to reopen. See Stone v. INS, 514 U.S. 386,
394 (1995); Kane v. Holder, 581 F.3d 231, 237 n.14 (5th Cir. 2009).
      Motions to reopen are disfavored. Lara v. Trominski, 216 F.3d 487, 496
(5th Cir. 2000). 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 ruling will stand even if this court concludes that it is
erroneous, “so 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.” Id. at 304 (internal
quotation marks and citation omitted).
      To establish a claim of ineffective assistance in a motion to reopen, a
petitioner must meet the procedural requirements set forth in Matter of Lozada,
19 I & N Dec. 637 (BIA 1988). See Lara, 216 F.3d at 496; Rodriguez-Manzano
v. Holder, 666 F.3d 948, 953 (5th Cir. 2012). In addition, the petitioner must
demonstrate    substantial    prejudice       resulting   from    counsel’s   deficient
performance. Gutierrez-Morales v. Homan, 461 F.3d 605, 609 (5th Cir. 2006).
Hernandez has abandoned any challenge to the BIA’s determination that he
failed to comply with the procedural requirements of Lozada because he failed
to raise any challenge to that determination in his brief. See Soadjede v.
Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
      Although we need not address Hernandez’s challenge to the BIA’s
alternative basis for rejecting the claim, his failure to demonstrate substantial
prejudice, we note that his challenge lacks merit. An alien convicted of a crime
involving moral turpitude (CIMT) is statutorily ineligible for cancellation of
removal. Esparza-Rodriguez v. Holder, 699 F.3d 821, 823 (5th Cir. 2012). The
charging instrument in Hernandez’s case described both intentional and reckless
conduct; therefore, it did not establish recklessness as the operative mens rea for

                                          2
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                                 No. 12-60713

the offense. See id. Hernandez thus was not substantially prejudiced by his
former counsel’s failure to secure and present the document at the initial
hearing. See Gutierrez-Morales, 461 F.3d at 609.
      Hernandez does not make any argument challenging the BIA’s basis for
denying his motion to reopen as it related to his application for withholding of
removal or asylum. He thus has abandoned any argument relevant to the sole
basis upon which he was denied relief. See Soadjede, 324 F.3d at 833.
      Hernandez has not shown that the BIA abused its discretion in denying
his motion to reopen. Zhao, 404 F.3d at 303. Accordingly, his petition for review
is DENIED.




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