Jose Villatoro-Avila v. Eric Holder, Jr.

Case: 14-60330 Document: 00512973856 Page: 1 Date Filed: 03/18/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-60330
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
March 18, 2015
JOSE MARIA VILLATORO-AVILA,
Lyle W. Cayce
Clerk
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. A090 968 520
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Jose Maria Villatoro-Avila, a native and citizen of El Salvador, petitions
this court for review of the Board of Immigration Appeals’ (BIA) decision
denying his motion to reopen his removal proceedings. The BIA determined
that the motion to reopen was untimely and that Villatoro-Avila had not
established the applicability of the exception for aliens seeking to apply for
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 14-60330
asylum based on changed country conditions. Although we have appellate
jurisdiction to review this decision, see Panjwani v. Gonzales, 401 F.3d 626,
632 (5th Cir. 2005), Villatoro-Avila has failed to challenge the BIA’s finding
that his motion to reopen was untimely and that he did not qualify for the
exception based on changed country conditions. He has thus abandoned any
challenge to the denial of his motion to reopen on that basis. See Soadjede v.
Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
Instead, Villatoro-Avila contends that the BIA abused its discretion in
refusing to equitably toll the time limitation on motions to reopen based on the
ineffective assistance of his prior attorneys and declining to exercise its sua
sponte authority to reopen his removal proceedings. Because 8 C.F.R.
§ 1003.2(a) provides the BIA with complete discretion in determining whether
to sua sponte reopen removal proceedings, we lack jurisdiction to review
Villatoro-Avila’s challenge to the BIA’s refusal to do so. See Ramos-Bonilla v.
Mukasey, 543 F.3d 216, 219-20 (5th Cir. 2008). Further, Villatoro-Avila’s claim
that the time limitation should have been equitably tolled based on the
ineffective assistance of his prior attorneys is, in essence, a claim that the BIA
should have exercised its discretion to reopen the removal proceedings sua
sponte based on the equitable tolling doctrine. See id. at 220. Because the BIA
had complete discretion to deny Villatoro-Avila’s equitable tolling request, we
lack jurisdiction to review the BIA’s decision. See id.
Finally, to the extent that Villatoro-Avila argues that the BIA’s refusal
to equitably toll the time limitation and reopen his removal proceedings
violated his due process rights, his argument is unavailing. We have
“repeatedly held that discretionary relief from removal, including an
application for an adjustment of status, is not a liberty or property right that
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No. 14-60330
requires due process protection.” Ahmed v. Gonzales, 447 F.3d 433, 440 (5th
Cir. 2006); Altamirano-Lopez v. Gonzales, 435 F.3d 547, 550-51 (5th Cir. 2006).
Villatoro-Avila’s petition for review is DENIED in part and DISMISSED
in part for lack of jurisdiction. His motions for appointment of counsel, to
suppress evidence, and to supplement the record are DENIED.
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