Ruben Uribe-Sanchez v. Jefferson Sessions, III , 690 F. App'x 300 ( 2017 )

Case: 16-60126 Document: 00514033274 Page: 1 Date Filed: 06/14/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-60126
Fifth Circuit
FILED
Summary Calendar June 14, 2017
Lyle W. Cayce
RUBEN DARIO URIBE-SANCHEZ, Clerk
Petitioner
v.
JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A091 881 573
Before BENAVIDES, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
Ruben Dario Uribe-Sanchez, a native and citizen of Mexico, challenges
the decision of the Board of Immigration Appeals (BIA) affirming the
Immigration Judge’s (IJ) denial of his motion to reopen removal proceedings.
The BIA found Uribe-Sanchez’s motion to be untimely and declined to exercise
its sua sponte discretion to reopen the removal proceedings. Uribe-Sanchez
contends that this was error.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-60126 Document: 00514033274 Page: 2 Date Filed: 06/14/2017
No. 16-60126
We lack jurisdiction to review the BIA’s decision not to exercise its
discretion to grant Uribe-Sanchez’s motion to reopen. See Enriquez-Alvarado
v. Ashcroft, 371 F.3d 246, 248-50 (5th Cir. 2004). The Supreme Court’s recent
decision in Mata v. Lynch, 135 S. Ct. 2150 (2015), does not disturb our prior
precedent on this point. See Oliveira v. Lynch, 670 F. App’x 307, 308 (5th Cir.
2016). 1 Uribe-Sanchez’s argument that we may nevertheless review his
argument that he had a due process right to a hearing on his request for a
waiver under Section 212(c) of the Immigration and Nationality Act 2 is
unavailing. Because his due process claim was not exhausted below, we lack
jurisdiction to review it. Claudio v. Holder, 601 F.3d 316, 318 (5th Cir. 2010).
The petition is therefore dismissed in part.
While we do have jurisdiction to review the BIA’s denial of Uribe-
Sanchez’s statutory motion to reopen, see Mata, 135 S. Ct. at 2154-55, Uribe-
Sanchez does not dispute that the motion to reopen was barred by statute
because he filed it more than 20 years after the removal decision. See 8 U.S.C.
§ 1229a(c)(7)(C)(i). There is no indication in the record, nor does Uribe-
Sanchez argue, that he raised the issue of equitable tolling below. Because he
has not demonstrated that the BIA abused its discretion by denying the
statutory motion to reopen as time barred, Barrios-Cantarero v. Holder, 772
F.3d 1019, 1021 (5th Cir. 2014), his petition is therefore denied in part.
DISMISSED IN PART AND DENIED IN PART.
1Although an unpublished opinion issued after January 1, 1996, is not controlling
precedent, it may be considered as persuasive authority. See Ballard v. Burton, 444 F.3d
391, 401 & n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).
2 Section 212(c) formerly afforded the Attorney General the discretion to admit
otherwise excludable aliens. See I.N.S. v. St. Cyr, 533 U.S. 289, 294-95 (2001). Section 212(c)
was replaced in 1996 with 8 U.S.C. § 1229b(a), which permits the Attorney General to cancel
removal of a deportable or inadmissible alien under certain circumstances. See St. Cyr, 533
U.S. at 297; Holder v. Martinez Gutierrez, 132 S. Ct. 2011, 2015 (2012).
2