Juan Ortiz v. Jefferson Sessions, III , 694 F. App'x 970 ( 2017 )

Case: 16-60207 Document: 00514110437 Page: 1 Date Filed: 08/10/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-60207 FILED
Summary Calendar August 10, 2017
Lyle W. Cayce
Clerk
JUAN BELTRAN ORTIZ,
Petitioner
v.
JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL,
Respondent
Petitions for Review of an Order of the
Board of Immigration Appeals
BIA No. A091 241 425
Before BARKSDALE, PRADO, and OWEN, Circuit Judges.
PER CURIAM: *
Through two petitions for review, Juan Beltran Ortiz, a native and
citizen of Mexico who was removed in 2000, contests the Board of Immigration
Appeals’ (BIA): (1) affirming the Immigration Judge’s (IJ) decision denying his
motion to reopen; and (2) denying his motion to reconsider.
In his first petition, Ortiz contends the BIA erred in determining the IJ
correctly applied the departure bar of 8 C.F.R. § 1003.23(b)(1); that bar
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 16-60207
prohibits an alien’s filing a motion to reopen invoking the IJ’s sua sponte
authority after the alien has been removed. He contends: the departure bar
does not preclude his filing a motion to reopen because the bar applies only to
regulatory motions to reopen; and any motion to reopen filed by an alien is a
statutory motion—even if the motion is untimely filed—and, therefore, the bar
does not apply. He also challenges the BIA’s conclusion that he failed to make
a viable claim of ineffective assistance of counsel, contending strict compliance
with the requirements of Matter of Lozada should not be required. 19 I. & N.
Dec. 637, 639 (BIA 1988).
The denial of a motion to reopen is reviewed 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 we conclude 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 (quoting Pritchett v. I.N.S., 993 F.2d
80, 83 (5th Cir. 1993)).
Ortiz filed his motion to reopen before the IJ nearly 15 years after the
final order of removal in 2000. Ortiz’ motion explicitly invoked the IJ’s
regulatory power to sua sponte reopen proceedings. In Mata v. Lynch, the
Supreme Court held: our court has jurisdiction to consider untimely motions
to reopen; and it erred in recharacterizing an untimely motion to reopen as a
request for the BIA to exercise its sua sponte authority. 135 S. Ct. 2150, 2155–
56 (2015). The Court, however, did not hold all reopenings are grounded in
statute. See id.
Our court has upheld application of the departure bar to untimely
motions to reopen; they are deemed regulatory motions. Ovalles v. Holder, 577
F.3d 288, 296–98 (5th Cir. 2009); Navarro-Miranda v. Ashcroft, 330 F.3d 672,
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675–76 (5th Cir. 2003). Because Mata neither explicitly nor effectively
overrules Navarro-Miranda and Ovalles, we remain bound by their holdings.
Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008).
Further, the regulations regarding motions to reopen for the IJ
specifically allow an alien to file a motion to reopen pursuant to the IJ’s sua
sponte authority. § 1003.23(b)(1). There is, therefore, no support for Ortiz’
assertion that all motions to reopen filed by aliens are statutory and not subject
to the departure bar.
Ortiz’ claiming the BIA abused its discretion in dismissing his claim for
ineffective assistance of counsel (IAC) lacks merit. To establish an IAC claim
in a motion to reopen, petitioner must meet the procedural requirements set
forth in Lozada. Rodriguez-Manzano v. Holder, 666 F.3d 948, 953 (5th Cir.
2012). Strict compliance with Lozada is mandatory. Hernandez-Ortez v.
Holder, 741 F.3d 644, 647–48 (5th Cir. 2014). Because he has not shown he
met the procedural requirements of Lozada, Ortiz has not demonstrated the
BIA erred by dismissing his IAC claim. See Rodriguez-Manzano, 666 F.3d at
953. He does not show that the BIA abused its discretion. See Zhao, 404 F.3d
at 303–04.
In his second petition, Ortiz contests the BIA’s denying his motion to
reconsider and to reopen. Ortiz contends, inter alia, the BIA erred in
determining he failed to provide authority for his assertion that the motion to
reopen was statutory.
“A motion to reconsider shall state the reasons for the motion by
specifying the errors of fact or law in the prior [BIA] decision and shall be
supported by pertinent authority.” 8 C.F.R. § 1003.2(b)(2). Obviously, review
of a motion to reconsider is, again, under the “highly deferential abuse-of-
discretion standard”. Zhao, 404 F.3d at 303. Ortiz’ challenge to the
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determination that his motion invoked the IJ’s sua sponte authority and was,
therefore, subject to the departure bar is without merit. He fails to show the
BIA abused its discretion in determining he did not show a material error of
law or fact. See id. at 301.
Challenging the denial of his alternate motion to reopen, Ortiz contends
the BIA erred in failing to address the merits of his claim that he was not
deportable in the light of a change in jurisprudence from this court. Ortiz also
maintains the BIA erred in ruling his IAC claim was not viable.
In denying Ortiz’ alternate motion to reopen, the BIA determined it was
both time barred and numerically barred. Ortiz makes no contention that the
BIA committed any error in determining his second motion to reopen was
untimely and numerically barred. Accordingly, he abandons any such
contention. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003). To the
extent Ortiz challenges the BIA’s exercise of its discretionary authority, this
court lacks jurisdiction to review whether the BIA should have exercised its
sua sponte authority to reopen a case. Enriquez-Alvarado v. Ashcroft, 371 F.3d
246, 248–50 (5th Cir. 2004).
DENIED IN PART, DISMISSED IN PART.
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