Alvarez-De Sauceda v. Garland ( 2023 )

Case: 22-60140 Document: 00516655492 Page: 1 Date Filed: 02/24/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 22-60140
FILED
February 24, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
San Juana Alvarez-De Sauceda,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A091 374 218
______________________________
Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam: *
San Juana Alvarez-De Sauceda, a native and citizen of Mexico,
petitions for review of a decision of the Board of Immigration Appeals (BIA),
denying reconsideration of its denial of a number barred motion to reopen.
_____________________
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 22-60140 Document: 00516655492 Page: 2 Date Filed: 02/24/2023
No. 22-60140
This court reviews the BIA’s denial of a motion to reconsider “under
a highly deferential abuse-of-discretion standard.” Lowe v. Sessions, 872 F.3d
713, 715 (5th Cir. 2017) (internal quotation marks and citation omitted). As
long as the BIA’s decision “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,” it will
be upheld. Id. (internal quotation marks and citation omitted).
Alvarez-De Sauceda argues that the BIA committed legal error when
it found that her Notice to Appear (NTA), which failed to include the date
and time of her removal hearing, vested the immigration court with
jurisdiction over her removal proceedings. She acknowledges, however, that
her jurisdictional argument based on Pereira v. Sessions, 138 S. Ct. 2105
(2018), runs counter to this court’s binding precedent in Pierre-Paul v. Barr,
930 F.3d 684 (5th Cir. 2019), abrogated in part on other grounds by Niz-Chavez
v. Garland, 141 S. Ct. 1474, 1479-80 (2021), and Maniar v. Garland, 998 F.3d
235 (5th Cir. 2021), but states that she is raising the issue to preserve it for
further review.
This court held in Pierre-Paul that a defect in an NTA does not deprive
an immigration court of jurisdiction over removal proceedings. 930 F.3d at
691-93. Though the Supreme Court’s decision in Niz-Chavez abrogated
Pierre-Paul in part, this court confirmed in Maniar that the jurisdictional
holding from Pierre-Paul remains “the law of [this] circuit,” even after Niz-
Chavez. See Maniar, 998 F.3d at 242 n.2. Thus, there is no merit to Alvarez-
De Sauceda’s contention that the immigration court lacked jurisdiction over
her removal proceedings. See Pierre-Paul, 930 F.3d at 693.
Alvarez-De Sauceda further argues that the BIA erred in finding that
she was statutorily ineligible for cancellation of removal under 8 U.S.C.
§ 1229b(a)(3) based on her prior conviction for the Texas felony offense of
possession of 50 pounds or less but more than five pounds of marijuana,
2
Case: 22-60140 Document: 00516655492 Page: 3 Date Filed: 02/24/2023
No. 22-60140
which the BIA deemed an aggravated felony. See 8 U.S.C. § 1101(a)(43)(B);
see also TEXAS HEALTH & SAFETY CODE § 481.121(a) and § 481.121(b)(4).
The Government initially moved this court to remand the case to the BIA in
lieu of briefing so that the BIA could consider the impact, if any, of Arce-
Vences v. Mukasey, 512 F.3d 167 (5th Cir. 2007), on its determination that
Alvarez-De Sauceda’s marijuana conviction constituted an aggravated
felony. We ordered that the motion be carried with the case and briefing
resumed. The Government now argues in its brief that remand would be
futile in light of this court’s recent decision in Djie v. Garland, 39 F.4th 280(5th Cir. 2022), because Alvarez-De Sauceda’s motion to reopen is number
barred, and there is no statutory basis for the BIA to grant a number barred
motion to reopen.
Here, Alvarez-De Sauceda sought reconsideration of the BIA’s denial
of her second motion to reopen, arguing that the BIA committed legal error
in determining that she was statutorily ineligible for cancellation of removal
based on her prior conviction for possession of marijuana, which the BIA
deemed an aggravated felony under § 1101(a)(43)(B). Even if we were to
assume that Arce-Vences rendered the BIA’s characterization of Alvarez-De
Sauceda’s marijuana conviction erroneous, applying the reasoning in Djie,
remand to the BIA would be futile because § 1229a(c)(7)(A) bars her motion
to reopen. See 39 F.4th at 288. As such, her petition for review must be
denied, not remanded. See id. The Government’s motion to remand is
likewise denied.
Finally, Alvarez-De Sauceda challenges the BIA’s refusal to exercise
its discretionary authority to reopen her removal proceedings sua sponte
based on her argument that the BIA erred in characterizing her marijuana
conviction as an aggravated felony. This court has long held that it lacks
jurisdiction to review challenges to the BIA’s decision not to exercise its
authority to reopen removal proceedings sua sponte. See id.
3
Case: 22-60140 Document: 00516655492 Page: 4 Date Filed: 02/24/2023
No. 22-60140
The petition for review is DENIED in part and DISMISSED in
part. The Government’s unopposed motion to remand is DENIED.
4