Manuel Baeza Hernandez v. Loretta Lynch


UNPUBLISHED OPINION FILED. [16-60018 Dismissed for Lack of Jurisdiction] Judge: EGJ, Judge: JES, Judge: JEG; granting motion to dismiss petition for review for lack of jurisdiction filed by Respondent Ms. Loretta Lynch, U. S. Attorney General [8140659-2] [16-60018]

Download PDF
Case: 16-60018 Document: 00513941296 Page: 1 Date Filed: 04/05/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-60018 Summary Calendar United States Court of Appeals Fifth Circuit FILED April 5, 2017 Lyle W. Cayce Clerk MANUEL BAEZA HERNANDEZ, Petitioner v. JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL, Respondent Petition for Review of an Order of the Board of Immigration Appeals BIA No. A044 350 585 Before JOLLY, SMITH, and GRAVES, Circuit Judges. PER CURIAM: * Manuel Baeza Hernandez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals (BIA) order dismissing his appeal and affirming the Immigration Judge’s (IJ) denial of his statutory motion to reopen and refusal to reopen proceedings sua sponte. The Government moves to dismiss the petition for review for lack of jurisdiction. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 16-60018 Document: 00513941296 Page: 2 Date Filed: 04/05/2017 No. 16-60018 Baeza Hernandez argues that the Supreme Court’s decision in Mata v. Lynch, 135 S. Ct. 2150, 2153-55 (2015), held that this court has jurisdiction to review all motions to reopen regardless of the reason for the BIA’s denial of the motion. However, we lack jurisdiction to review whether the BIA should have exercised its sua sponte authority to reopen a case. Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248-50 (5th Cir. 2004). The ruling in Mata did not disturb that rule and, thus, we lack jurisdiction to review the BIA’s decision not to reopen the proceedings sua sponte. See Mata, 135 S. Ct. at 2155; Enriquez-Alvarado, 371 F.3d at 250. Baeza Hernandez also contends that the BIA erred in affirming the IJ’s determination that the departure bar regulation applied to his motion to reopen sua sponte and asserts that this action constituted a gross miscarriage of justice. Given that these arguments also challenge the decision to deny the motion to reopen sua sponte, we lack jurisdiction to review this decision. See Enriquez-Alvarado, 371 F.3d at 250. Finally, Baeza Hernandez asks this court to remand this case to the BIA for a determination of whether his motion to reopen should be considered timely based on equitable tolling. Because the issue of equitable tolling was not properly exhausted, we lack jurisdiction to consider this claim. See Omari v. Holder, 562 F.3d 314, 318-19 (5th Cir. 2009). The motion to dismiss the petition for review for lack of jurisdiction is GRANTED, and the petition for review is DISMISSED FOR LACK OF JURISDICTION. 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?