Amaya v. United States Immigration & Customs Enforcement , 383 F. App'x 419 ( 2010 )

Case: 09-20749 Document: 00511150576 Page: 1 Date Filed: 06/22/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 22, 2010
No. 09-20749
Summary Calendar Lyle W. Cayce
Clerk
MANUEL SERJIO BANUELOS AMAYA,
Petitioner – Appellant
v.
UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT,
Respondent – Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:98-CV-4130
Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Manuel Serjio Banuelos Amaya appeals the denial of his motion filed
pursuant to Federal Rule of Civil Procedure 60(b)(4) that challenges a removal
order. Amaya also seeks a stay of deportation and a writ of mandamus.
The district court construed Amaya’s motion as seeking relief from its
judgment dismissing the case without prejudice for failure to prosecute, and
denied the motion as untimely. Though styled as a motion seeking relief from
judgment pursuant to Rule 60(b), Amaya sought relief from the removal order,
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-20749 Document: 00511150576 Page: 2 Date Filed: 06/22/2010
No. 09-20749
not the district court’s judgment. Therefore, his motion was in substance an
attack on the removal order.
A district court lacks jurisdiction over a pleading attacking a removal
order. Rosales v. Bureau of Immigration & Customs Enforcement, 426 F.3d 733,
735-36 (5th Cir. 2005); 8 U.S.C. § 1252(a)(5). We will not entertain Amaya’s
repetitive Rule 60(b) motion. Cf. United States v. Early, 27 F.3d 140, 142 (5th
Cir. 1994); Latham v. Wells Fargo Bank, N.A., 987 F.2d 1199, 1203-04 (5th Cir.
1993).
Amaya’s motion for a stay of deportation is also denied. “[A] petition for
review filed with an appropriate court of appeals . . . [is] the sole and exclusive
means for judicial review of an order of removal. . . .” 8 U.S.C. § 1252(a)(5).
Although we have authority to stay a removal order pending consideration of a
petition for review of a removal order, see Nken v. Holder, 129 S. Ct. 1749, 1756-
57 (2009), Amaya has not filed a petition for review with this court.
Because the district court lacks jurisdiction to provide the relief Amaya
seeks, his petition for a writ of mandamus is denied. See Jones v. Alexander, 609
F.2d 778, 781 (5th Cir. 1980).
APPEAL DISMISSED; MOTION DENIED; MANDAMUS PETITION
DENIED.
2