Lopez Acosta v. Rosen ( 2021 )

Case: 19-60871 Document: 00515696556 Page: 1 Date Filed: 01/06/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 6, 2021
No. 19-60871 Lyle W. Cayce
Summary Calendar Clerk
Dachel Lopez Acosta,
Petitioner,
versus
Jeffrey A. Rosen, Acting U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A 201 690 031
Before Wiener, Southwick, and Duncan, Circuit Judges.
Per Curiam:*
Dachel Lopez Acosta is a native and citizen of Cuba. Originally, Lopez
Acosta sought review of a decision of the Board of Immigration Appeals
(BIA) dismissing his appeal from an order of the Immigration Judge (IJ)
*
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opinion should not be published and is not precedent except under the limited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: 19-60871 Document: 00515696556 Page: 2 Date Filed: 01/06/2021
No. 19-60871
denying his application for asylum, withholding of removal, and protection
under the Convention Against Torture (CAT). Because the BIA has since
granted his motion to reopen, Lopez Acosta has filed a motion to stay the
proceedings. The Government opposes the motion to stay and has filed a
motion to dismiss for lack of jurisdiction. Lopez Acosta’s motion to stay will
be denied, and the Government’s motion to dismiss will be granted. The
petition for review will be dismissed for lack of jurisdiction.
This court generally has jurisdiction to review a “final order of
removal.” 8 U.S.C. § 1252(a). An order of removal is final when the Board
affirms an IJ’s finding of removability or when the time for appealing an IJ’s
decision has expired. 8 U.S.C. § 1101(a)(47)(B). “Judicial review of a final
order of removal is available only where the applicant has exhausted all
administrative remedies of right.” Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir.
2004); § 1252(d)(1); see also Omari v. Holder, 562 F.3d 314, 320 (5th Cir.
2009). In this case, the BIA has granted Lopez Acosta’s motion to reopen
and remanded the case to the IJ. The BIA has specifically ordered that the IJ
enter a new decision regarding Lopez Acosta’s eligibility for asylum,
withholding of removal, and CAT relief. The BIA must address any claims
arising from these proceedings before Lopez Acosta can assert them before
this court. See Roy, 389 F.3d at 137. Because Lopez Acosta is currently
pursuing administrative remedies below, he is no longer subject to a final
order of removal that this court has jurisdiction to review. Id.; see 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).
MOTION TO STAY PROCEEDINGS DENIED. MOTION
TO DISMISS GRANTED. PETITION FOR REVIEW
DISMISSED.
2