Karla Cardona-Morales v. Eric Holder, Jr.

Filing

UNPUBLISHED OPINION FILED. [13-60351 Affirmed in Part and Dismissed in Part for Lack of Jurisdiction] Judge: EGJ , Judge: ECP , Judge: CH Mandate pull date is 09/19/2014 [13-60351]

Case: 13-60351

Document: 00512715219

Page: 1

Date Filed: 07/29/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 13-60351
Summary Calendar

FILED
July 29, 2014
Lyle W. Cayce
Clerk

KARLA VANESA CARDONA-MORALES, also known as Alba Esmeralda
Anduray-Cea,
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. A077 444 276
Before JOLLY, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
Karla Vanesa Cardona-Morales petitions this court for review of a
decision of the Board of Immigration Appeals (BIA) denying a motion for
reconsideration, which followed a decision of an Immigration Judge (IJ)
denying her motion to reopen removal proceedings.

Although Cardona-

Morales raises several challenges to the determinations made by the IJ and
the BIA with respect to the IJ’s denial of her motion to reopen and the BIA’s
denial of her two subsequent motions for reconsideration, the only petition 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*

Case: 13-60351

Document: 00512715219

Page: 2

Date Filed: 07/29/2014

No. 13-60351
review before this court challenges the BIA’s May 2013 denial of CardonaMorales’s first motion for reconsideration. Accordingly, this court’s jurisdiction
is limited to those arguments relating to the BIA’s May 2013 decision. See
Kane v. Holder, 581 F.3d 231, 237-38 n.14 (5th Cir. 2009).
In its May 2013 decision, the BIA made three determinations. In this
court, Cardona-Morales has briefed no argument challenging the BIA’s first
determination that she failed to establish any error in the dismissal of her
appeal as untimely. She has thus waived any argument that could have been
raised. See Zhu v. Gonzales, 493 F.3d 588, 593 n.10 (5th Cir. 2007).
Next, there was no abuse of discretion in the BIA’s alternative
determination that it would not have disturbed the IJ’s denial of CardonaMorales’s motion to reopen, even if Cardona-Morales had filed a timely appeal
of that decision. See Zhao v. Gonzales, 404 F.3d 295, 303-04 (5th Cir. 2005).
As the BIA observed, the record establishes, contrary to the assertions in the
motion to reopen, that Cardona-Morales received sufficient notice of the 1999
removal hearing through personal service.

8 U.S.C. §§ 1229(a)(1),

1229a(b)(5)(C)(ii).
Finally, Cardona-Morales suggests that the BIA’s failure to exercise its
sua sponte authority to reopen her removal proceedings has resulted in a gross
miscarriage of justice.

Because the authority to reopen an immigration

proceeding sua sponte is entirely discretionary, this court lacks jurisdiction to
review a challenge to the BIA’s refusal to do so. Ramos-Bonilla v. Mukasey,
543 F.3d 216, 219-20 (5th Cir. 2008); see also Ibarra-Gonzalez v. Holder, 542
F. App’x 341, 341-42 (5th Cir. 2013).
Accordingly, the petition for review is DENIED in part and DISMISSED
in part for lack of jurisdiction.

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