Daniel Pazo-Ricano v. Eric Holder, Jr.

Case: 13-60553 Document: 00512603072 Page: 1 Date Filed: 04/21/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-60553
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
April 21, 2014
DANIEL PAZO-RICANO,
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. A074 015 979
Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
Daniel Pazo-Ricano, a native and citizen of Cuba, petitions this court for
review of an order of the Board of Immigration Appeals (BIA) dismissing his
appeal of the Immigration Judge’s (IJ) grant of the Department of Homeland
Security’s (DHS) motion for reconsideration and of the IJ’s denial of his motion
to reopen. He contends that the IJ and the BIA failed to consider that he was
eligible for a waiver of inadmissibility pursuant to 8 U.S.C. § 1182(h) in 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 13-60553 Document: 00512603072 Page: 2 Date Filed: 04/21/2014
No. 13-60553
light of this court’s decision in Martinez v. Mukasey, 519 F.3d 532 (5th Cir.
2008). Further, Pazo-Ricano contends that his eligibility for a waiver of
inadmissibility was an exceptional circumstance warranting sua sponte
reopening and that he was entitled to equitable tolling from the date of the
Martinez decision until he could consult with counsel and file his motion to
reopen.
Because Pazo-Ricano seeks review of the decision to deny a motion to
reopen sua sponte, and because such authority is discretionary, we lack
jurisdiction. See Ramos-Bonilla v. Mukasey, 543 F.3d 216, 219 (5th Cir. 2008);
Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249-50 (5th Cir. 2004). Moreover,
Pazo-Ricano did not argue before the BIA that he was eligible for a waiver of
inadmissibility in light of Martinez, that his eligibility for a waiver of
inadmissibility following Martinez was an exceptional circumstance
warranting reopening, or that he was entitled to equitable tolling between the
date of the Martinez decision and the filing of his motion to reopen. Pazo-
Ricano’s failure to exhaust these issues deprives this court of jurisdiction. See
Said v. Gonzales, 488 F.3d 668, 670-71 (5th Cir. 2007); Roy v. Ashcroft, 389
F.3d 132, 137 (5th Cir. 2004).
To the extent that Pazo-Ricano asserts that he seeks review of the BIA’s
dismissal of his appeal of the IJ’s grant of the respondent’s motion for
reconsideration, he has presented no argument in support of this issue and,
thus, has abandoned it for purposes of the petition for review. See Soadjede v.
Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003); Brinkmann v. Dallas Cnty. Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
PETITION DISMISSED IN PART FOR LACK OF JURISDICTION;
DENIED IN PART.
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