Enriquez v. Garland ( 2023 )

Case: 21-60837 Document: 00516617489 Page: 1 Date Filed: 01/19/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 21-60837
FILED
January 19, 2023
Ricardo Enriquez, Lyle W. Cayce
Clerk
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A096 517 803
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam:*
Ricardo Enriquez, a native and citizen of Mexico, petitions this court
for review of a decision by the Board of Immigration Appeals dismissing his
appeal. We DISMISS the petition for review.
Enriquez was convicted of indecency with a child by contact under
section 21.11(a)(1) of the Texas Penal Code. In light of that conviction, the
Department of Homeland Security served Enriquez with a Notice to Appear,
*
This opinion is not designated for publication. See 5TH CIR. R. 47.5.
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No. 21-60837
charging him as removable under 8 U.S.C. § 1227(a)(2)(A)(iii) for being
convicted of sexual abuse of a minor, which is an “aggravated felony” under
8 U.S.C. § 1101(a)(43)(A). Afterwards, the Department of Homeland
Security lodged an additional charge of removability against Enriquez as a
noncitizen “convicted of a crime of domestic violence, a crime of stalking, or
a crime of child abuse, child neglect, or child abandonment.” 8 U.S.C. §
1227(a)(2)(E)(i).
In response, Enriquez filed an application for cancellation of removal.
At his removal hearing, Enriquez admitted the factual allegations contained
in the Notice to Appear and stated that he is not afraid to return to Mexico.
Consequently, the Immigration Judge determined that Enriquez is not
eligible for cancellation of removal and ordered that Enriquez be removed to
Mexico. Enriquez appealed to the BIA and the BIA affirmed the Immigration
Judge’s decision.
I.
Here, Enriquez challenges the BIA’s determination by contesting the
underlying criminal conviction. But a final conviction “provides a valid basis
for deportation unless it is overturned in a judicial post-conviction
proceeding.” Zinnanti v. INS, 651 F.2d 420, 421 (5th Cir. 1981). Enriquez
has not alleged that his conviction has been overturned, and he may not
collaterally attack the validity of his conviction through an immigration
proceeding. See Brown v. INS, 856 F.2d 728, 731 (5th Cir. 1988).
Furthermore, Enriquez forfeits any challenge to the BIA’s
determination that his conviction constitutes a “crime of . . . child abuse”
under 8 U.S.C. § 1227(a)(2)(E)(i) because he fails to brief the issue. See Jaco
v. Garland, 24 F.4th 395, 401 n.1 (5th Cir. 2021) (“Although [the Court]
liberally construe[s] pro se petitions, pro se litigants must still comply with the
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civil rules of appellate procedure.”); Chambers v. Mukasey, 520 F.3d 445, 448
n.1 (5th Cir. 2008) (holding that issues not briefed are forfeited on appeal).
II.
Having argued that none of Enriquez’s arguments is meritorious, the
government nonetheless contends that this case should be remanded to the
BIA because the BIA failed to address some of the factual and legal issues
regarding Enriquez’s eligibility for cancellation of removal. To the extent
that the government raises new errors arising solely out of the BIA’s decision,
those arguments are unexhausted because they were not raised in a motion
for reconsideration. See Osman v. Garland, No. 21-60893, 2022 WL
17352570 (5th Cir. Dec. 1, 2022); Martinez-Guevara v. Garland, 27 F.4th 353,
360 (5th Cir. 2022). Likewise, to the extent the government asserts that the
IJ erred, those arguments are unexhausted because they were not raised in an
appeal to the BIA. See id. Accordingly, we lack jurisdiction to review the
claims raised by the government.
* * *
Accordingly, we DISMISS the petition for review.
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