Diaz-Diaz v. Garland ( 2021 )

Case: 20-60190 Document: 00515847608 Page: 1 Date Filed: 05/04/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 4, 2021
No. 20-60190 Lyle W. Cayce
Summary Calendar Clerk
Mirian Ervis Diaz-Diaz; Ashly Stefany Martinez-Diaz;
Yenny Catalina Diaz; Sandivel Camila Diaz,
Petitioners,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A208 557 958
BIA No. A208 557 959
BIA No. A208 557 960
BIA No. A208 557 961
Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
*
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opinion should not be published and is not precedent except under the limited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: 20-60190 Document: 00515847608 Page: 2 Date Filed: 05/04/2021
Mirian Ervis Diaz-Diaz and her three minor children seek review of
two decisions by the Board of Immigration Appeals: (1) its July 2019 decision,
affirming the Immigration Judge’s denial of their applications for asylum,
withholding of removal, and protection under the Convention Against
Torture; and (2) its February 2020 decision, denying their motion to
reconsider or reopen. We dismiss the petition for lack of jurisdiction insofar
as it seeks review of the July 2019 decision, and we deny the petition insofar
as it seeks review of the February 2020 decision.
Mirian Ervis Diaz-Diaz and her three children, who are natives and
citizens of El Salvador, entered the United States in October 2015. The next
month, they were charged with being removable from the United States. In
August 2017, Diaz-Diaz filed applications for asylum, withholding of
removal, and protection under the Convention Against Torture for herself
and her children. Diaz-Diaz received a hearing and testified before an
Immigration Judge.
On January 12, 2018, the IJ denied the applications for relief. Diaz-
Diaz timely appealed to the BIA. The BIA adopted and affirmed the IJ’s
decision and dismissed the appeal on July 16, 2019. Diaz-Diaz then filed a
motion to reconsider on August 22, 2019. On February 25, 2020, the BIA
denied the motion to reconsider; in its decision, the BIA also construed that
motion as a motion to reopen, which it denied. Diaz-Diaz filed this petition
for review on March 12, 2020.
We first determine whether we have jurisdiction over Diaz-Diaz’s
petition for review. Under 8 U.S.C. § 1252(b)(1), an individual must file a
petition for review “not later than 30 days after the date of the [BIA’s] final
order of removal.” This 30-day filing deadline is jurisdictional. Navarro-
Miranda v. Ashcroft, 330 F.3d 672, 676 (5th Cir. 2003). Because “[t]he BIA’s
denial of an appeal and its denial of a motion to reconsider [or reopen] are
Case: 20-60190 Document: 00515847608 Page: 3 Date Filed: 05/04/2021
No. 20-60190
two separate final orders,” each BIA decision in this case requires its own
petition for review, which must be filed during that 30-day window. Guevara
v. Gonzales, 450 F.3d 173, 176 (5th Cir. 2006); see also 8 U.S.C. § 1252(6).
Diaz-Diaz did not file a petition for review within 30 days of the BIA’s July
2019 decision, so we lack jurisdiction to consider any challenges to that
decision.
Diaz-Diaz did, however, file a petition for review within 30 days of the
BIA’s February 2020 decision, so we have jurisdiction over that decision. In
her petition, Diaz-Diaz does not challenge the denial of the motion to
reconsider or reopen; instead, her petition focuses exclusively on the BIA’s
July 2019 decision. Though we would have jurisdiction to consider the BIA’s
February 2020 decision, Diaz-Diaz has abandoned any challenge to that
decision. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
Accordingly, the petition for review is DISMISSED IN PART for
lack of jurisdiction and DENIED IN PART.
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