Edwin Retana v. Eric Holder, Jr. , 589 F. App'x 261 ( 2015 )

Case: 13-60739 Document: 00512889212 Page: 1 Date Filed: 01/05/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-60739
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
January 5, 2015
EDWIN GIOVANNI RETANA,
Lyle W. Cayce
Clerk
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. A088 809 199
Before HIGGINBOTHAM, JONES and HIGGINSON, Circuit Judges.
PER CURIAM: *
Edwin Giovanni Retana, a native and citizen of Guatemala, applied for
cancellation of removal under 8 U.S.C. § 1229b(b). The immigration judge
(“IJ”) and the Board of Immigration Appeals (“BIA”) determined that Retana
failed to demonstrate that a qualifying relative would suffer an exceptional and
extremely unusual hardship if he were deported. Retana filed a motion to
reconsider, which the BIA denied, concluding that its decision denying his
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-60739 Document: 00512889212 Page: 2 Date Filed: 01/05/2015
No. 13-60739
appeal had neither been based on a factual or legal defect nor overlooked any
of his arguments.
Retana filed a petition for review that was timely only from the denial of
the motion to reconsider. See 8 U.S.C. § 1252(b)(1); Guevara v. Gonzales,
450 F.3d 173, 176 (5th Cir. 2006). In his opening brief, Retana argues that the
IJ considered an improper factor in denying him relief and that the BIA failed
to properly analyze the hardship his children would face if he is deported.
Because Retana did not timely petition for review of the BIA’s dismissal of his
appeal, we lack jurisdiction to review these claims of error, as they relate to
the underlying ruling on Retana’s appeal of his removal order. See Guevara,
450 F.3d at 176; Navarro-Miranda v. Ashcroft, 330 F.3d 672, 676 (5th Cir.
2003).
For the first time in his reply brief, Retana argues that the BIA
committed an error of law by concluding that having an alternative means of
immigrating necessarily undercut his hardship showing. We generally do not
entertain arguments raised for the first time in a reply brief. United States v.
Ramirez, 557 F.3d 200, 203 (5th Cir. 2009). Further, to the extent that this
argument attacks the underlying BIA decision rather than the denial of the
motion for reconsideration, we lack jurisdiction, as explained above.
Retana moved for a stay of deportation pending our decision. That
motion is denied.
PETITION DISMISSED FOR LACK OF JURISDICTION; MOTION
DENIED.
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