Albertico Ibarra v. Eric Holder, Jr.


UNPUBLISHED OPINION FILED. [10-60184 Dismissed for Lack of Jurisdiction] Judge: WED , Judge: JES , Judge: LHS Mandate pull date is 02/17/2011 [10-60184]

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Albertico Ibarra v. Ericase: 10-60184 C Holder, Jr. Document: 00511332798 Page: 1 Date Filed: 12/27/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED December 27, 2010 N o . 10-60184 S u m m a r y Calendar Lyle W. Cayce Clerk A L B E R T I C O IBARRA P e titio n e r v. E R I C H. HOLDER, JR., U.S. ATTORNEY GENERAL R espon dent P e tit io n for Review of an Order of the Board of Immigration Appeals B I A No. A018 950 395 B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. P E R CURIAM:* A lb e r t ic o Ibarra, a native and citizen of Mexico, petitions for review of the o r d e r reinstating his 1999 deportation order. He avers that his due process and e q u a l protection rights were violated during his prior removal hearing because (1 ) the immigration judge (IJ) did not inform him of his eligibility for any form o f relief from removal and (2) counsel did not timely file applications for d is c r e t io n a r y relief and did not challenge the criminal grounds for his 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-60184 Document: 00511332798 Page: 2 Date Filed: 12/27/2010 No. 10-60184 r e m o v a b ilit y . Ibarra also challenges a 2009 indictment charging him with ille g a lly reentering the United States after his prior removal. Ibarra's challenge t o the indictment in his underlying reentry case is premature because the d is t r ic t court has not reached a final disposition in that case. Ibarra remains free t o raise any defenses in the course of that criminal proceeding. T h is court reviews questions of law as to jurisdiction de novo. See RamirezM o lin a v. Ziglar, 436 F.3d 508, 513 (5th Cir. 2006). The REAL ID Act did not a lt e r the jurisdictional requirements that: (1) administrative remedies must be e x h a u s t e d prior to seeking judicial review of a removal order1 and (2) a collateral a t t a c k on a prior deportation order may be considered by this court only if the in it ia l deportation proceedings involved a gross miscarriage of justice. Id. at 514. Ibarra cannot establish a gross miscarriage of justice in his underlying r e m o v a l proceeding because he conceded his removability and failed to appeal t h e IJ's 1999 removal order before the Board of Immigration Appeals and this c o u r t. See id. Moreover, Ibarra affirmatively declined to make a statement c o n t e s t in g the reinstatement determination. As Ibarra has not demonstrated t h a t there was a gross miscarriage of justice, we lack jurisdiction to consider his c o lla t e r a l challenges to the underlying removal order, and the petition is d is m is s e d on that basis. See id. at 514-15. D I S M I S S E D FOR LACK OF JURISDICTION. A court may review a final order of removal only if "the alien has exhausted all administrative remedies available to the alien as of right." 8 U.S.C. 1252(d). 1 2

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