Juan Rojas Nieto v. Eric Holder, Jr. ( 2011 )

Case: 10-60541 Document: 00511479775 Page: 1 Date Filed: 05/17/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 17, 2011
No. 10-60541
Summary Calendar Lyle W. Cayce
Clerk
JUAN TOMAS ROJAS NIETO,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A088 809 989
Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Juan Tomas Rojas Nieto petitions for review of the Board of Immigration
Appeals’ (BIA) denial of his motion to reopen his removal proceedings. In that
regard, Rojas does not contest the BIA’s holding that his motion is untimely to
the extent it seeks reconsideration of the BIA’s dismissal of his appeal; therefore,
that issue is abandoned. E.g., Calderon-Ontiveros v. INS, 809 F.2d 1050, 1052
(5th Cir. 1986).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-60541 Document: 00511479775 Page: 2 Date Filed: 05/17/2011
No. 10-60541
Our court lacks jurisdiction to consider whether the BIA erred by denying
Rojas’ motion to reopen his claim that he was entitled to cancellation of removal
under 8 U.S.C. § 1229b(b). 8 U.S.C. § 1252(a)(2)(B)(i); see also Assaad v.
Ashcroft, 378 F.3d 471, 474 (5th Cir. 2004). Under section 1252(a)(2)(B)(i), no
court has jurisdiction to review a judgment involving the exercise of discretion,
including judgments regarding relief under § 1229b. E.g., Rueda v. Ashcroft, 380
F.3d 831, 831 (5th Cir. 2004). We likewise lack jurisdiction to consider Rojas’
Convention Against Torture claim because he failed to exhaust it by fairly
presenting it before the BIA. 8 U.S.C. § 1252(d)(1); e.g., Claudio v. Holder, 601
F.3d 316, 318 (5th Cir. 2010).
The BIA’s denial of Rojas’ motion to reopen so that he could pursue his
asylum and withholding-of-removal claims is reviewed for abuse of discretion.
Manzano-Garcia v. Gonzales, 413 F.3d 462, 469 (5th Cir. 2005). Contrary to his
contentions, the BIA held correctly that he was required, in his motion to reopen,
to establish a prima facie case for each claim. INS v. Abudu, 485 U.S. 94, 104
(1988). Rojas was required to show that he had a well-founded fear of
persecution based upon a protected ground to establish a prima facie case for his
asylum claim; to establish a prima facie case for withholding of removal, he was
required to satisfy an even higher standard. See Chen v. Gonzales, 470 F.3d
1131, 1135-38 (5th Cir. 2006). By failing to challenge the BIA’s ruling that he
identified no protected ground that would serve as a viable basis for either claim,
Rojas has abandoned such an assertion. Calderon-Ontiveros, 809 F.2d at 1052.
DISMISSED in part and DENIED in part.
2