Reyes v. Garland ( 2022 )

Case: 20-60794 Document: 00516347275 Page: 1 Date Filed: 06/07/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-60794 June 7, 2022
Lyle W. Cayce
Clerk
Jose Eleazar Reyes,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A076 818 913
Before Higginbotham, Higginson, and Oldham, Circuit Judges.
Per Curiam:*
Jose Eleazar Reyes, a native and citizen of Mexico, petitions for review
of a decision of the Board of Immigration Appeals (BIA) concluding that he
was ineligible for asylum, withholding of removal, and relief under the
Convention Against Torture (CAT). On appeal, Reyes challenges only the
BIA’s conclusion that he reformulated his claimed particular social group
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-60794 Document: 00516347275 Page: 2 Date Filed: 06/07/2022
No. 20-60794
(“PSG”) on appeal, and its decision not to address his new PSG for that
reason.
We lack jurisdiction over an issue raised in a petition for review unless
the petitioner “has exhausted all administrative remedies available to the
alien as of right” with respect to that issue. 8 U.S.C. § 1252(d)(1). To exhaust
administrative remedies, a petitioner must file a motion for reconsideration
with the BIA “where the BIA’s decision itself results in a new issue and the
BIA has an available and adequate means for addressing that issue.” Omari
v. Holder, 562 F.3d 314, 320 (5th Cir. 2009); see also Del Cid-Lazo v. Barr, 784
F. App’x 894, 896 (5th Cir. 2019); 8 C.F.R. § 1003.2(b). As we recently
explained, this means we lack jurisdiction when a petitioner “alleg[es] some
new defect that the BIA never had a chance to consider” without first moving
the BIA for reconsideration. Martinez-Guevara v. Garland, 27 F.4th 353, 360
(5th Cir. 2022). This includes claims “that the BIA erred procedurally.” Id.at 361 n.9.
Here, Reyes’s challenge to the BIA’s reformulation conclusion
presents a new issue arising out of the BIA’s decision itself. And because
Reyes did not file a motion for reconsideration, as he had the right to do, “the
BIA never had a chance to consider” this claim. Id. at 360. Accordingly, we
lack jurisdiction over this claim. Because this is the only claim in Reyes’s
petition, we lack jurisdiction over it.
The petition for review is DISMISSED for lack of jurisdiction.
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