Ruiz Pena v. Garland ( 2022 )

Case: 20-60946 Document: 00516265736 Page: 1 Date Filed: 04/04/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-60946 April 4, 2022
Summary Calendar Lyle W. Cayce
Clerk
Rodney Ruiz Pena,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A213 288 411
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam:*
Rodney Ruiz Pena, a native and citizen of Cuba, petitions this court
for review of an order of the Board of Immigration Appeals (BIA) dismissing
his appeal from a decision of the Immigration Judge (IJ) ordering him
*
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opinion should not be published and is not precedent except under the limited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: 20-60946 Document: 00516265736 Page: 2 Date Filed: 04/04/2022
No. 20-60946
removed. After briefing was complete, the BIA granted the parties’ joint
motion to reopen and remanded the matter to the IJ for further proceedings.
We should always be mindful of our jurisdiction and raise the issue sua
sponte if necessary. Goonsuwan v. Ashcroft, 252 F.3d 383, 385 (5th Cir. 2001).
We generally have jurisdiction to review “final order[s] of removal.” 8
U.S.C. § 1252(a).
An order of removal becomes final upon affirmance of the IJ’s
decision by the BIA or upon expiry of the time for appealing the IJ’s decision.
Espinal v. Holder, 636 F.3d 703, 705 (5th Cir. 2011); 8 U.S.C.
§ 1101(a)(47)(B). The grant of a motion to reopen that vacates or materially
changes a formerly final order renders the order nonfinal, thus depriving this
court of jurisdiction over the pending appeal or petition for review. See
§ 1252(d)(1); cf. Espinal, 636 F.3d at 705-06. Because we may review a final
order of removal only if “the applicant has exhausted all administrative
remedies of right,” failure to exhaust results in a jurisdictional bar to review.
Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004); § 1252(d)(1).
The BIA has granted a motion to reopen and remanded the case to the
IJ. In other words, the BIA vacated the order at issue in this petition for
review. See Espinal, 636 F.3d at 705-06. Further, the BIA must address any
claims arising from these proceedings before Ruiz Pena can assert them
before this court. See Roy, 389 F.3d at 137. Because Ruiz Pena 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.; § 1252(d)(1).
Consequently, the petition for review is DISMISSED for want of
jurisdiction.
2