Mora-Jimenez v. Garland ( 2022 )

Case: 20-61095 Document: 00516239203 Page: 1 Date Filed: 03/15/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 15, 2022
No. 20-61095 Lyle W. Cayce
Summary Calendar Clerk
Michael Leonard Mora-Jimenez,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A203 825 273
Before King, Costa, and Ho, Circuit Judges.
Per Curiam:*
Michael Leonard Mora-Jimenez is a native and citizen of Cuba.
Originally, Mora-Jimenez sought review of a decision of the Board of
Immigration Appeals (BIA) dismissing his appeal from an order of the
Immigration Judge (IJ) denying his motion to reopen his removal proceedings
*
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opinion should not be published and is not precedent except under the limited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: 20-61095 Document: 00516239203 Page: 2 Date Filed: 03/15/2022
No. 20-61095
and rescind his in absentia order of removal. Because the BIA has since
granted a motion to reopen, the parties have filed a joint motion to dismiss
the instant petition for review 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 BIA
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 a motion to reopen and remanded
the case to the IJ. The BIA has specifically ordered that the IJ reopen the
proceedings in which Mora-Jimenez was ordered removed in absentia. The
BIA must address any claims arising from these proceedings before Mora-
Jimenez can assert them before this court. See Roy, 389 F.3d at 137. Because
Mora-Jimenez 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). 1
MOTION TO DISMISS GRANTED. PETITION FOR
REVIEW DISMISSED.
1
Unpublished opinions issued on or after January 1, 2996, are not binding
precedent, but they may be persuasive authority. Ballard v. Burton, 444 F.3d 391, 401 n.7
(5th Cir. 2006); 5th Cir. R. 47.5.4.
2