Ortiz-Morales v. Mukasey ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 31, 2008
No. 07-60545
Summary Calendar Charles R. Fulbruge III
Clerk
MAGDALY WALESKI ORTIZ-MORALES,
Petitioner,
v.
MICHAEL B. MUKASEY,
U.S. Attorney General,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals
No. A70 291 383
Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Magdaly Ortiz-Morales is a native and citizen of Honduras who petitions
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 07-60545
for review of a final order of the Board of Immigration Appeals (“BIA”) affirming
the denial of her motion to reopen her deportation proceedings. She failed to ap-
pear for her deportation hearing in November 1989 and was ordered deported
in absentia. Seventeen years later she filed the motion to reopen.
Ortiz-Morales argues that she is entitled to Temporary Protection Status
(“TPS”) because all Hondurans have been granted such status until January
2009. She raised her TPS claim in her motion asking the BIA to reconsider its
affirmance of the denial by the immigration judge (“IJ”) of her motion to reopen.
Because, however, she did not appeal the BIA’s action, this court lacks jurisdic-
tion to review her argument regarding TPS. See Moreira v. Mukasey, 509 F.3d
709, 712 (5th Cir. 2007).
Ortiz-Morales contends that the 180-day period that she had to file a mo-
tion to reopen the proceedings to challenge the in absentia deportation order
should be equitably tolled because she received ineffective assistance of counsel.
She urges that she did not appear at her deportation hearing because someone
who fraudulently represented himself to be a lawyer told her that she had been
given “parole to leave for California if she stayed in touch with D.H.S. which she
did by filing application for Employment Authorization.” She avers that she was
required to show only “reasonable cause” for missing the hearing and that, be-
cause she was a minor, notice of the hearing also had to be served on an adult.
Ortiz-Morales did not present to the BIA her argument that notice of the
hearing had to be served on an adult, so she has not exhausted that claim, and
this court lacks jurisdiction to review it. See Heaven v. Gonzales, 473 F.3d 167,
177 (5th Cir. 2006). Further, her argument about equitable tolling is inapposite.
The BIA ruled that she was removed pursuant to 8 U.S.C. § 1252(b) and that,
because service of the hearing notice occurred before June 13, 1992, her motion
to reopen the deportation proceedings was not subject to time limitations.
The Attorney General argues that Ortiz-Morales has not exhausted her
claim that ineffective assistance of counsel was the reason she did not appear at
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No. 07-60545
her deportation hearing. Pursuant to 8 U.S.C. § 1252(d), “[a] court may review
a final order of removal only ifSS (1) the alien has exhausted all administrative
remedies available to the alien as of right . . . .” This court has interpreted that
requirement to mean that failure to exhaust an issue creates a jurisdictional bar
on appeal. Heaven, 473 F.3d at 177. “An alien fails to exhaust his administra-
tive remedies with respect to an issue when the issue is not raised in the first in-
stance before the BIASSeither on direct appeal or in a motion to reopen.” Id. (in-
ternal quotation marks and citation omitted).
Ortiz-Morales’s appeal to the BIA did not mention that a notario told her
that she could leave and that was why she failed to appear. Moreover, the cases
to which she directed the BIA do not link bad advice from a notario or from coun-
sel to reasonable cause for failing to appear at a deportation hearing. Conse-
quently, she did not exhaust administrative remedies with respect to her claim
that reliance on the notario was reasonable cause for failure to appear, and we
lack jurisdiction to entertain it on appeal. See id.
Ortiz-Morales seeks to file what she terms a “new” asylum application in
which she seeks withholding of removal and relief under the Convention Against
Torture (“CAT”). Because she has failed to brief adequately, however, she has
waived this court’s review of whether the BIA erred when it determined that the
motion to reopen the proceedings to pursue asylum and withholding of removal
was not timely filed. See Calderon-Ontiveros v. INS, 809 F.2d 1050, 1052 (5th
Cir. 1986). Because Ortiz-Morales has not established that the BIA erred in de-
nying her motion to reopen the proceedings to pursue asylum, withholding of re-
moval, cancellation of removal, and relief under CAT, her argument that she is
entitled to the same is unavailing.
The petition for review is DENIED.
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