Freddie Castillo v. Loretta Lynch , 653 F. App'x 800 ( 2016 )

Case: 15-60094 Document: 00513531023 Page: 1 Date Filed: 06/02/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 15-60094 June 2, 2016
Summary Calendar
Lyle W. Cayce
Clerk
FREDDIE BALMORE CASTILLO, also known as Fredis Castillo,
Petitioner
v.
LORETTA LYNCH, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A090 472 547
Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
Freddie Balmore Castillo petitions for review of the decision of the Board
of Immigration Appeals (BIA) denying his motion to reconsider its denial of his
untimely motion to reopen his removal proceedings. Castillo argues that the
BIA erred in declining to exercise its sua sponte authority to reopen removal
proceedings and that, in the alternative, he was entitled to equitable tolling.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-60094 Document: 00513531023 Page: 2 Date Filed: 06/02/2016
No. 15-60094
We lack jurisdiction to review the BIA’s discretionary decision whether
to exercise its sua sponte authority to reopen removal proceedings. See
Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249-50 (5th Cir. 2004). Insofar
as Castillo argues that we retain jurisdiction because the BIA’s discretionary
denial of relief violated his constitutional due process rights by denying him a
hearing on the merits of his cancellation of removal application, Castillo
received a full and fair immigration hearing and “discretionary relief from
removal . . . is not a liberty or property right that requires due process
protection.” Ahmed v. Gonzales, 447 F.3d 433, 440 (5th Cir. 2006).
Moreover, contrary to Castillo’s assertion, our jurisdiction is not restored
by a “gross miscarriage of justice” claim. See 8 C.F.R. § 1003.2(a). Castillo’s
reliance on Ramirez-Molina v. Ziglar, 436 F.3d 508 (5th Cir. 2006), and Lara
v. Trominski, 216 F.3d 487 (5th Cir. 2000), is misplaced because these cases
did not address whether we had jurisdiction to review a decision by the BIA
not to exercise its sua sponte authority to reopen immigration proceedings but,
instead, considered whether a federal court has jurisdiction to consider an
alien’s collateral challenge to the reinstatement of a prior removal order. See
Ramirez-Molina, 436 F.3d at 510-15; Lara, 216 F.3d at 492-95. Indeed,
Castillo fails to cite any authority suggesting a “gross miscarriage of justice”
exception to our lack of jurisdiction over the BIA’s failure to reopen proceedings
sua sponte. Even if such an exception existed, Castillo does not explain how
he suffered a gross miscarriage of justice. See Ramirez-Molina, 436 F.3d at
514-15 (noting that there is no precise standard for determining what
constitutes a gross miscarriage of justice and dismissing petition for lack of
jurisdiction after concluding that petitioner had not demonstrated a gross
miscarriage of justice).
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Case: 15-60094 Document: 00513531023 Page: 3 Date Filed: 06/02/2016
No. 15-60094
Additionally, we note that even if the immigration statutes are subject
to equitable tolling, Castillo has failed to show that such tolling would apply.
See Mata v. Lynch, 135 S. Ct. 2150, 2156 & n.3 (2015) (expressing no opinion
as to whether the immigration statutes allow equitable tolling). Castillo did
not expressly argue before the BIA that the applicable time limitations for
filing his motion to reopen should be equitably tolled and does not adequately
argue in his petition for review that he is entitled to equitable tolling. See
Stroman v. Thaler, 603 F.3d 299, 302 (5th Cir. 2010) (noting that the burden
of establishing equitable tolling rests with the petitioner).
Accordingly, the petition for review is DENIED in part and DISMISSED
in part for lack of jurisdiction.
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