Bermudes-Cardenas v. Gonzales ( 2006 )

United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS 7, 2006
June
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-60574
MANUEL BERMUDES-CARDENAS,
also known as Manuel Cardenas-Bermudez,
Petitioner,
versus
ALBERTO R. GONZALES,
U.S. Attorney General,
Respondent.
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Petition for Review of an Order of
the Board of Immigration Appeals
(A35 472 968)
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Before SMITH, WIENER, and STEWART, Circuit Judges.
PER CURIAM*:
Petitioner Manuel Bermudes-Cardenas (“Cardenas”) seeks review
of the Board of Immigration Appeals’s (“BIA”) order denying his May
6, 2004, motion to reopen his removal proceedings. As we lack
jurisdiction to consider one of the three claims on all of which
Cardenas must prevail to be entitled to relief, we deny review.
I. FACTS AND PROCEEDINGS
Cardenas is a native and citizen of Mexico who has lived in
the United States as a lawful permanent resident since 1978. In
*
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this opinion should not be published and is not precedent except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.
2000, the former Immigration and Naturalization Service charged him
with being removable as an aggravated felon under
§ 237(a)(2)(A)(iii) of the Immigration and Nationality Act
(“INA”).1 Cardenas appeared before an Immigration Judge (“IJ”) in
December 2002, where he admitted his removability but asserted his
intention to apply for discretionary relief from removal under the
former §§ 212(c) and 245 of the INA.2 The IJ gave Cardenas until
March 28, 2003, to file his applications for §§ 212(c) and 245
relief with the court. The IJ informed Cardenas that if he failed
to file his applications by that date, “they will likely be
considered abandoned.”
That deadline came and went without Cardenas’s filing of his
applications for relief. True to his word, the IJ deemed
Cardenas’s unfiled applications to be abandoned and, on March 31,
2003, ordered Cardenas removed from the United States. Cardenas
appealed the IJ’s decision to the BIA, which affirmed the IJ and
issued a final order of removal on October 16, 2003.
Nothing transpired in this case until January 2004, when
Cardenas received a “bag and baggage” letter directing him to
1
8 U.S.C. § 1227(a)(2)(A)(iii). Cardenas does not contest
that his felony —— a 1991 conviction in Texas state court for
“indecency with a child —— contact” —— qualifies as an aggravated
felony.
2
Although the substance of these provisions is not
important to the resolution of this case, §§ 212(c) and 245
provided an alien with avenues to seek, respectively, a waiver of
the alien’s inadmissibility and an adjustment of his immigration
status.
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report for his removal. Surprised by the letter, Cardenas met with
his attorney, who, after telling Cardenas that he would take care
of any problems with his immigration status, filed on February 14,
2004, a motion to reopen Cardenas’s removal proceedings before the
IJ. The IJ denied the motion, reasoning that Cardenas had filed it
in the wrong forum —— the IJ, as opposed to the BIA. Cardenas’s
attorney then sought out the proper forum, and, on March 16, 2004,
purported to file with the BIA on Cardenas’s behalf a motion to
reopen Cardenas’s removal proceedings. The BIA, however, rejected
this motion to reopen as untimely. It reasoned that, as the motion
sought to reopen the BIA’s final removal order issued against
Cardenas on October 16, 2003, the INA’s and BIA’s 90-day time limit
within which to file a motion to reopen had already run.3
According to Cardenas, however, the March 16th motion to
reopen was filed without his authority. Cardenas insists that on
March 15, 2004 —— one day before the March 16th motion was filed ——
he had fired his attorney and hired new counsel to represent him in
these proceedings. Therefore, Cardenas contends, as of the filing
of the March 16th motion, his newly-fired attorney did not have
authority to act on his behalf.
Represented by new counsel, Cardenas returned to the BIA on
May 6, 2004, and filed with it the new motion to reopen that is at
issue in this appeal. In his May 6th motion, Cardenas argued that
3
See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).
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the BIA should reopen his removal proceedings because his failure
timely to file his applications for §§ 212(c) and 245 relief from
removal was caused by the allegedly ineffective assistance of his
former counsel.
The BIA denied Cardenas’s May 6th motion to reopen on three
independent grounds. First, the BIA held that the motion was
untimely because it was filed more than 90 days after Cardenas’s
removal order became final on October 16, 2003. Second, the BIA
held that the motion was numerically barred by the one-motion-to-
reopen rule of 8 C.F.R. § 1003.2(c)(2) and 8 U.S.C.
§ 1229a(c)(7)(A).4 Finally, the BIA held that, even if it were to
overlook the procedural problems with the May 6th motion, that
motion would fail on its merits, because Cardenas had not
demonstrated that his former attorney’s allegedly ineffective
assistance caused him to miss the deadline for his §§ 212(c) and
245 applications.
Cardenas timely petitioned us for review of the BIA’s denial
of his May 6th motion to reopen.
II. ANALYSIS
The BIA denied Cardenas’s May 6th motion to reopen on three
adequate and independent grounds. For Cardenas to prevail in this
appeal, then, he must successfully attack each of these grounds; if
4
With certain exceptions not relevant here, 8 U.S.C.
§ 1229a(c)(7)(A) and 8 C.F.R. § 1003.2(c)(2) permit an alien to
file just one motion to reopen his removal proceedings.
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one attack fails, Cardenas will not be entitled to relief. And
Cardenas makes a valiant effort, arguing that the BIA erred, first,
by concluding that the one-motion-to-reopen rule of 8 C.F.R.
§ 1003.2(c)(2) and 8 U.S.C. § 1229a(c)(7)(A) barred his May 6th
motion; second, by holding his May 6th motion to reopen to be
untimely; and, third, by denying his motion on its merits. Despite
his efforts, however, Cardenas cannot prevail: We lack
jurisdiction to consider one of Cardenas’s three claims, viz., that
the BIA erred in its application of the one-motion rule. We
therefore need not address Cardenas’s other two claims, and we deny
review.
As a general rule, we have jurisdiction to consider a petition
for review of the BIA’s denial of a motion to reopen a final order
of removal. But that jurisdiction is not explicitly granted by
Congress; rather, as we stated in our decision in Assaad v.
Ashcroft, it is derived from and “‘[i]mplicit in’” Congress’s
express grant of jurisdiction to consider petitions for review of
removal orders themselves.5 In other words, the scope of our
jurisdiction to review the BIA’s treatment of a motion to reopen a
final order of removal tracks our jurisdiction to review the final
order of removal itself. If one is curtailed, so is the other.6
5
378 F.3d 471, 474 (5th Cir. 2004) (quoting Patel v. U.S.
Att’y Gen., 334 F.3d 1259, 1261 (11th Cir. 2003)) (emphasis
added).
6
Id.; see also id. at 474 (reasoning that “just as our
power to review a final [removal] order is circumscribed by [8
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In this context we further note that, if Cardenas were
petitioning us for review of his actual removal order, we would
lack jurisdiction to consider any of his claims that were not legal
or constitutional in nature. This is so because Cardenas was
ordered removed based on his aggravated felony conviction; and,
under 8 U.S.C. § 1252(a)(2)(C) and (D), our jurisdiction to review
removal orders based on an alien’s commission of an aggravated
felony is limited to “constitutional claims or questions of law.”7
It follows under the rule of Assaad then that Congress’s
restriction of our jurisdiction to review an aggravated felon’s
removal order is extended one step further: It limits our
jurisdiction to consider a petition for review of an aggravated
felon’s motion to reopen his removal proceedings to the
constitutional and legal questions raised in that petition.
The jurisdictional question for Cardenas’s case, then, is
whether his claims present legal or constitutional questions. Only
to the extent that they do would we have jurisdiction over his
petition for review. And, even though two of Cardenas’s three
essential claims fall in the legal-or-constitutional category ——
U.S.C.] § 1252(a)(2)’s various jurisdiction-stripping provisions,
our ‘jurisdiction to entertain an attack on that order mounted
through filing . . . a motion to reopen’ is equally curtailed”)
(quoting Patel, 334 F.3d at 1262). In practical terms, the rule
of Assaad serves to prevent an end-run around the otherwise valid
restrictions Congress has placed on our authority to review
certain final orders of removal.
7
See, e.g., Bustamante-Barrera v. Gonzales, —— F.3d ——,
2006 WL 1030325, at *3 (5th Cir. Apr. 20, 2006).
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specifically, his equitable tolling and ineffective assistance of
counsel claims —— his claim that the BIA erred in its application
of the one-motion-to-reopen rule does not.
To challenge the BIA’s application of the one-motion rule to
his May 6th motion to reopen, Cardenas makes two arguments. First,
he contends that the May 6th motion was not in fact a new motion to
reopen; rather, it “was captioned as an amendment to the [March
16th] motion . . . , and is therefore not a second motion to
reopen, but instead an amendment of the first.”8 Alternatively,
Cardenas argues that the March 16th motion to reopen was “not a
bona fide motion” because his fired attorney “failed to inform,
much less procure consent from, Mr. Cardenas before filing the
motion.” Thus, Cardenas insists, the March 16th motion cannot be
attributed to him for purposes of the one-motion rule.
Both of these arguments rest on purely factual —— not legal or
constitutional —— foundations. The first argument presents the
factual question whether Cardenas intended the May 6th motion to
reopen to be an amendment to the March 16th motion. The second
argument presents the factual question whether Cardenas’s former
attorney actually had the authority to file the March 16th motion
to reopen on Cardenas’s behalf. Because neither of Cardenas’s
arguments turns on a legal or constitutional question, the
Assaad rule and 8 U.S.C. § 1252(a)(2)(C) work together to deprive
8
Emphasis added.
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us of jurisdiction to consider Cardenas’s claim that the BIA erred
in its application of the one-motion rule.9
III. CONCLUSION
As Cardenas must succeed on all three of his claims to be
entitled to relief, and as we hold that we lack jurisdiction to
review one of those three claims, we need not reach Cardenas’s
other two claims. The petition for review is
DENIED.
9
Cardenas contends that we have jurisdiction over his
entire petition for review because he “is not specifically
challenging the merits” of his removal order. (Emphasis added.)
Stated otherwise, Cardenas believes that § 1252(a)(2)(C)’s
stripping of jurisdiction over removal orders issued against
aggravated felon aliens —— and, by extension, Assaad’s stripping
of jurisdiction over motions to reopen filed by such aliens ——
applies only if the alien’s petition challenges the BIA’s
finding that the alien is in fact removable. As Cardenas’s
petition does not challenge the fact of his removability ——
indeed, he conceded it —— Cardenas claims that we retain
jurisdiction.
We disagree. Cardenas understates the extent to which
§ 1252(a)(2)(C) strips the federal courts of jurisdiction to
consider petitions for review filed by criminal aliens. Under
that provision, the federal courts simply do not
have jurisdiction over most of such an alien’s claims,
regardless of whether the alien is challenging the BIA’s finding
of removability. See Hernandez-Castillo v. Moore, 436 F.3d 516,
518 (5th Cir. 2005) (noting that § 1252(a)(2)(C) “preclude[s] all
judicial review . . . where a removal order is based on, inter
alia, the alien’s commission of an aggravated felony”).
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