Said Nepomuceno v. Jefferson Sessions, III , 704 F. App'x 388 ( 2017 )

Case: 15-60804 Document: 00514250927 Page: 1 Date Filed: 11/28/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 15-60804 November 28, 2017
Summary Calendar
Lyle W. Cayce
Clerk
SAID ACOSTA NEPOMUCENO, also known as Said Acosta,
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. A078 135 020
Before JONES, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM: *
Said Acosta Nepomuceno, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (BIA) dismissing his appeal,
regarding the Immigration Judge’s (IJ) order pretermitting his application for
cancellation of removal. He claims the BIA and IJ erred in concluding he could
not meet the required seven years of continuous residency after finding he was
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 15-60804 Document: 00514250927 Page: 2 Date Filed: 11/28/2017
No. 15-60804
paroled into the United States, but not admitted in any status, prior to his 17
August 2005 adjustment to lawful permanent resident.
Nepomuceno does not dispute the finding he was removable according to
8 U.S.C. § 1227(a)(2)(B)(i) based upon his convictions for offenses involving
controlled substances and has, therefore, abandoned any challenge on that
basis. Sama v. Hannigan, 669 F.3d 585, 589 (5th Cir. 2012); Soadjede v.
Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003). And, because Nepomuceno is
removable as a criminal alien, we have jurisdiction to consider only
constitutional claims or questions of law. 8 U.S.C. § 1252(a)(2)(C), (D); Brieva-
Perez v. Gonzales, 482 F.3d 356, 359 (5th Cir. 2007).
Accordingly, we lack jurisdiction to consider Nepomuceno’s fact-based
claims. Escudero-Arciniega v. Holder, 702 F.3d 781, 785 (5th Cir. 2012);
Nakimbugwe v. Gonzales, 475 F.3d 281, 284 (5th Cir. 2007). Moreover, we lack
jurisdiction to consider whether the IJ should have made an adverse inference
regarding the Government’s failure to produce a more substantial immigration
file because, by failing to raise the issue before the BIA, Nepomuceno did not
exhaust his administrative remedies. 8 U.S.C. § 1252(d)(1); Omari v. Holder,
562 F.3d 314, 321 (5th Cir. 2009); Wang v. Ashcroft, 260 F.3d 448, 452–53 (5th
Cir. 2001).
To the extent Nepomuceno raises a question of law by asserting he was
admitted in any status when immigration officials allegedly “waved” him
through inspection, his claim is without merit because the IJ expressly
concluded he was paroled into the country, not admitted; therefore, because we
lack jurisdiction for this fact-based claim, the question of his “status” is
immaterial. Tula-Rubio v. Lynch, 787 F.3d 288, 290–91 (5th Cir. 2015).
DENIED in part and DISMISSED in part.
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