Albertico Ibarra v. Eric Holder, Jr. , 405 F. App'x 927 ( 2010 )

Case: 10-60184 Document: 00511332798 Page: 1 Date Filed: 12/27/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 27, 2010
No. 10-60184 Lyle W. Cayce
Summary Calendar Clerk
ALBERTICO IBARRA
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. A018 950 395
Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Albertico Ibarra, a native and citizen of Mexico, petitions for review of the
order reinstating his 1999 deportation order. He avers that his due process and
equal protection rights were violated during his prior removal hearing because
(1) the immigration judge (IJ) did not inform him of his eligibility for any form
of relief from removal and (2) counsel did not timely file applications for
discretionary relief and did not challenge the criminal grounds for his
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-60184 Document: 00511332798 Page: 2 Date Filed: 12/27/2010
No. 10-60184
removability. Ibarra also challenges a 2009 indictment charging him with
illegally reentering the United States after his prior removal. Ibarra’s challenge
to the indictment in his underlying reentry case is premature because the
district court has not reached a final disposition in that case. Ibarra remains free
to raise any defenses in the course of that criminal proceeding.
This court reviews questions of law as to jurisdiction de novo. See Ramirez-
Molina v. Ziglar, 436 F.3d 508, 513 (5th Cir. 2006). The REAL ID Act did not
alter the jurisdictional requirements that: (1) administrative remedies must be
exhausted prior to seeking judicial review of a removal order1 and (2) a collateral
attack on a prior deportation order may be considered by this court only if the
initial deportation proceedings involved a gross miscarriage of justice. Id. at 514.
Ibarra cannot establish a gross miscarriage of justice in his underlying
removal proceeding because he conceded his removability and failed to appeal
the IJ’s 1999 removal order before the Board of Immigration Appeals and this
court. See id. Moreover, Ibarra affirmatively declined to make a statement
contesting the reinstatement determination. As Ibarra has not demonstrated
that there was a gross miscarriage of justice, we lack jurisdiction to consider his
collateral challenges to the underlying removal order, and the petition is
dismissed on that basis. See id. at 514-15.
DISMISSED FOR LACK OF JURISDICTION.
1
A court may review a final order of removal only if “the alien has exhausted all
administrative remedies available to the alien as of right.” 8 U.S.C. 1252(d).
2