Juan Salgado v. Loretta Lynch

Case: 14-60507 Document: 00513109223 Page: 1 Date Filed: 07/08/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-60507
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
July 8, 2015
JUAN S. SALGADO,
Lyle W. Cayce
Clerk
Petitioner
v.
LORETTA LYNCH, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A090 348 499
Before JONES, BENAVIDES, and GRAVES, Circuit Judges.
PER CURIAM: *
Juan S. Salgado, a native and citizen of Mexico, and formerly a lawful
permanent resident of the United States, filed a petition seeking our review of
a decision by the Board of Immigration Appeals (BIA) that affirmed the ruling
by the immigration judge (IJ) that the IJ lacked jurisdiction to reopen
Salgado’s 2009 removal proceedings. Salgado sought reopening because the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-60507
Texas aggravated felony conviction that resulted in his 2009 removal has been
vacated.
Certain removal orders and denials of discretionary relief are exempt
from judicial review. 8 U.S.C. § 1252(a)(2)(B) & (C). However, we have
jurisdiction to review “constitutional claims or questions of law raised upon a
petition for review.” § 1252(a)(2)(D). We review the BIA’s order but consider
the IJ’s decision to the extent it influenced the BIA’s decision. See Gomez-
Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009). We review the denial of
a motion to reopen under a highly deferential abuse of discretion standard. Id.
The decision must be affirmed “as long as it is not capricious, without
foundation in the evidence, or otherwise so irrational that it is arbitrary rather
than the result of any perceptible rational approach.” Id.
Salgado’s legal argument that an IJ can reopen removal proceedings “at
any time,” regardless of the departure bar, is foreclosed. See Ovalles v. Holder,
577 F.3d 288, 292-93 (5th Cir. 2009) (recognizing the long-standing rule that
the departure bar precludes sua sponte reopening under immigration
regulations); 8 C.F.R. § 1003.23(b)(1); cf. Garcia-Carias v. Holder, 697 F.3d
257, 2665 (5th Cir. 2012) (“Ovalles resolved the issue of the applicability of the
departure regulation to the Board’s regulatory power to reopen or reconsider
sua sponte.”).
Salgado asserts that, despite the departure bar, the IJ may reopen in
light of Padilla v. Kentucky, 559 U.S. 356 (2010), and Chaidez v. United States,
133 S. Ct. 1103 (2013). Neither decision is relevant because neither said
anything about removal proceedings. Salgado likewise gets no relief from
relying on a general statement in the Government’s brief in the unrelated case
of Nken v. Holder, 556 U.S. 418, 433-34 (2009), which concerned the factors
relevant to reviewing a stay of removal. Nothing in that case or the
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Government’s brief addressed the departure bar or sua sponte reopening of
removal proceedings.
Salgado further argues that the IJ violated his due process rights by
refusing to reopen. However, “a change in the legal status of an underlying
conviction does not create a constitutional right to reopen removal
proceedings.” Ovalles, 577 F.3d at 299. Salgado fails to show an abuse of
discretion concerning the application of the departure bar. See Gomez-
Palacios, 560 F.3d at 358. This part of his petition must be denied.
Salgado attempts to distinguish Ovalles by noting that he sought
reopening within 90 days of the vacatur of his aggravated felony conviction.
He thus characterizes his bid as one for “statutory” reopening under 8 U.S.C.
§ 1229a(c)(7), rather than a “regulatory” reopening under § 1003.23(b)(1). The
departure bar does not apply to a timely motion for statutory reopening under
§ 1229a(c)(7). See Garcia-Carias, 697 F.3d at 263-65. However, Salgado’s
contentions based on § 1229a are beyond the scope of this appeal because they
were not presented to the BIA and are thus unexhausted. See Omari v. Holder,
562 F.3d 314, 324-25 (5th Cir. 2009); Roy v. Ashcroft, 389 F.3d 132, 137 (5th
Cir. 2004); see also Ibarra-Gonzalez v. Holder, 542 F. App'x 341, 342 (5th Cir.
2013) (rejecting a similar argument for failure to exhaust). This part of
Salgado’s petition must be dismissed for lack of jurisdiction.
Because Salgado shows no statutory or regulatory ground for tolling, his
argument about timeliness may be construed as a claim for equitable tolling,
a claim he mentioned in his appeal to the BIA only to preserve it for appeal. A
claim of equitable tolling is essentially an argument for sua sponte reopening.
Ramos-Bonilla v. Mukasey, 543 F.3d 216, 220 (5th Cir. 2008). We lack
jurisdiction over such a claim because sua sponte reopening is wholly within
the discretion of the IJ or the BIA, and we have no standard by which to such
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a discretionary decision. Id. This part of Salgado’s petition must be dismissed
for lack of jurisdiction. See id.
The Supreme Court has granted certiorari to review an unpublished
decision in which we held, under Ramos-Bonilla, that we lacked jurisdiction to
review the refusal to sua sponte reopen a removal proceeding. See Mata v.
Holder, 558 F. App’x 366, 367 (5th Cir. 2014), cert. granted, 135 S. Ct. 1039
(2015). Nonetheless, Ramos-Bonilla remains binding until overruled by the
Supreme Court or our court sitting en banc. See Burge v. Parish of St.
Tammany, 187 F.3d 452, 466 (5th Cir. 1999). The Supreme Court’s grant of
certiorari in Mata does not affect our obligation to follow our precedent. See
United States v. Lopez-Velasquez, 526 F.3d 804, 808 n.1 (5th Cir. 2008).
The petition for review is DENIED IN PART and DISMISSED IN PART.
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