Disotuar-Garcia v. Garland ( 2022 )

Case: 21-60133 Document: 00516389277 Page: 1 Date Filed: 07/11/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 11, 2022
No. 21-60133
Summary Calendar Lyle W. Cayce
Clerk
Nelson Disotuar-Garcia,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A213 287 464
Before Wiener, Dennis, and Haynes, Circuit Judges.
Per Curiam:*
Nelson Disotuar-Garcia, a native and citizen of Cuba, petitions for
review of the decision of the Board of Immigration Appeals (BIA) dismissing
his appeal of the decision of the immigration judge (IJ) denying his motion to
reopen his removal proceedings and rescind his in absentia order of removal.
*
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opinion should not be published and is not precedent except under the limited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: 21-60133 Document: 00516389277 Page: 2 Date Filed: 07/11/2022
No. 21-60133
After briefing was complete, the BIA granted the parties’ joint motion to
reopen and remanded the matter to the IJ for further proceedings. As a
result, the respondent has filed a motion to dismiss the petition for review for
lack of jurisdiction.
Federal appellate courts generally have jurisdiction to review “final
order[s] of removal.” 8 U.S.C. § 1252(a)(1); see Espinal v. Holder, 636 F.3d
703, 705 (5th Cir. 2011). An order of removal becomes final upon affirmance
of the IJ’s decision by the BIA or upon expiry of the time for appealing the
IJ’s decision. Espinal, 636 F.3d at 705; 8 U.S.C. § 1101(a)(47)(B). Because
this court may review a final order of removal only if “the applicant has
exhausted all administrative remedies of right,” failure to exhaust results in
a jurisdictional bar to review. Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir.
2004); § 1252(d)(1).
In this case, the BIA has granted a motion to reopen proceedings in
which Disotuar-Garcia was ordered removed in absentia and has remanded
the case to the IJ. The BIA must address any claims arising from these
proceedings before Disotuar-Garcia can assert them before this court. See
Roy, 389 F.3d at 137. Because the record indicates that Disotuar-Garcia is
currently pursuing administrative remedies below, he is no longer subject to
a final order of removal that this court has jurisdiction to review, and the
petition for review should be dismissed for want of jurisdiction. See id.; see
also Gregoire v. Holder, 421 F. App’x 432, 433 (5th Cir. 2011) (holding that a
BIA order granting reconsideration and remanding the matter to an IJ
deprived this court of jurisdiction). 1
1
Unpublished opinions issued on or after January 1, 1996, are not binding
precedent, but they may be persuasive authority. Ballard v. Burton, 444 F.3d 391, 401 n.7
(5th Cir. 2006); 5th Cir. R. 47.5.4.
2
Case: 21-60133 Document: 00516389277 Page: 3 Date Filed: 07/11/2022
No. 21-60133
MOTION TO DISMISS GRANTED. PETITION FOR
REVIEW DISMISSED.
3