Gabriel Garcia v. Eric Holder, Jr. , 557 F. App'x 378 ( 2014 )

Case: 13-60297 Document: 00512549123 Page: 1 Date Filed: 03/03/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-60297 March 3, 2014
Summary Calendar
Lyle W. Cayce
Clerk
GABRIEL ADRIAN GARCIA, also known as Gabriel Adrian Garcia Leal,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A300 321 217
Before DeMOSS, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
Gabriel Adrian Garcia petitions for review of the Board of Immigration
Appeals’s (BIA) dismissal of his appeal of the Immigration Judge’s (IJ) order
denying his motion to reopen. He claims, without citing anything in the record
before us, that the IJ erroneously concluded that the Department of Homeland
Security (DHS) could not exercise its prosecutorial discretion to terminate or
defer his removal until he was ordered removed. Although he concedes that
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-60297 Document: 00512549123 Page: 2 Date Filed: 03/03/2014
No. 13-60297
“DHS never indicated that it intended to exercise [its] discretion” in his case,
Garcia nonetheless contends that he was denied due process because his
circumstances warranted the exercise of prosecutorial discretion pursuant to a
memorandum from John Morton, Director of Immigration and Customs
Enforcement (ICE), that authorizes ICE attorneys to exercise prosecutorial
discretion at any stage of the removal proceedings.
We review the decision of the BIA unless the IJ’s decision influenced the
BIA’s decision. Efe v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002). Since the
BIA adopted the IJ’s findings and conclusions, the IJ’s findings are reviewable.
See id.We lack jurisdiction to consider Garcia’s challenge to the exercise of
DHS’s prosecutorial discretion to terminate or defer his removal. See 8 U.S.C.
§ 1252(g). We have jurisdiction to review the denial of Garcia’s motion to
reopen. See Nolos v. Holder, 611 F.3d 279, 281 (5th Cir. 2010). However,
Garcia does not address the IJ’s finding that his motion to reopen was
untimely, thereby waiving consideration of the issue. See 8 U.S.C. §
1229a(c)(7)(C)(i); 8 C.F.R. § 1003.23(b)(1); Soadjede v. Ashcroft, 324 F.3d 830,
833 (5th Cir. 2003). To the extent that Garcia argues that the IJ should have
reopened the removal proceeding via his sua sponte authority, we lack
jurisdiction to review the IJ’s wholly discretionary refusal to do so. Ramos-
Bonilla v. Mukasey, 543 F.3d 216, 220 (5th Cir. 2008). Finally, Garcia cannot
establish a due process violation related to his motion to reopen because “there
is no liberty interest at stake in a motion to reopen.” Altamirano-Lopez v.
Gonzales, 435 F.3d 547, 550 (5th Cir. 2006).
Garcia’s petition for review is DENIED in part and DISMISSED in part
for lack of jurisdiction.
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