Luis Suarez Dominguez v. Loretta Lynch

Filing

UNPUBLISHED OPINION FILED. [16-60067 Dismissed for Lack of Jurisdiction] Judge: CES , Judge: CDK , Judge: EHJ [16-60067]

Case: 16-60067

Document: 00514168041

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Date Filed: 09/22/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-60067

United States Court of Appeals
Fif h Circuit

FILED
September 22, 2017

LUIS MARIO SUAREZ DOMINGUEZ,

Lyle W. Cayce
Clerk

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. A 079 414 945
Before STEWART, Chief Judge, and KING and JONES, Circuit Judges.
PER CURIAM:*
Luis Mario Suarez Dominguez petitions for review of the Board of
Immigration Appeals’s decision to dismiss his appeal regarding his motion to
reopen his removal proceedings. Suarez Dominguez now argues that the Board
erred because he is entitled to equitable tolling of the 90-day statutory period
in which to move to reopen and, thus, his motion is timely. Because his
equitable tolling contention is unexhausted and therefore unreviewable, we
DISMISS his petition 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*

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I. FACTUAL AND PROCEDURAL BACKGROUND
Luis Mario Suarez Dominguez is a native and citizen of Cuba. He was
paroled into the United States on August 5, 2001, and, on the following day,
was accorded lawful permanent resident (LPR) status pursuant to the Cuban
Adjustment Act. 1 In May 2006, he pleaded guilty in the Southern District of
Florida to conspiracy to defraud and commit health care fraud in violation of
18 U.S.C. § 371. He was sentenced to 28 months of imprisonment, along with
three years of post-imprisonment supervised release, and was ordered to pay
$970,036 in restitution. In September 2006, he was served with a notice to
appear before an immigration judge (IJ) in Texas. The notice alleged that
Suarez

Dominguez

was

subject

to

removal

pursuant

to

8

U.S.C.

§ 1227(a)(2)(A)(iii) because he was convicted of a crime deemed an aggravated
felony under 8 U.S.C. § 1101(a)(43)(M)(i). 2 In October 2006, an IJ concluded
that Suarez Dominguez was not eligible for a waiver of inadmissibility 3 (a form
of relief) because he was convicted after becoming a LPR. Accordingly, the IJ
ordered that he be removed.
Several years later, in December 2014, Suarez Dominguez moved for the
immigration court to reopen his proceedings sua sponte in order to allow him
to apply for readjustment of his status under the Cuban Adjustment Act in
conjunction with a waiver of inadmissibility. In his motion, he explained that
after his removal order, this court decided Martinez v. Mukasey, which held
that aliens who adjust to LPR status post-entry into the United States, such

The Cuban Adjustment Act, 8 U.S.C. § 1255, “affords Cuban asylum seekers
preferential treatment by enabling them to enter the United States and achieve permanentresident status through a special process not offered to other refugees.” Note, The Cuban
Adjustment Act of 1966, 114 HARV. L. REV. 902, 902 (2001).
2 Section 1101(a)(43)(M)(i) defines aggravated felony to include a crime that “involves
fraud or deceit in which the loss to the victim or victims exceeds $10,000.”
3 Under 8 U.S.C. § 1182(h), the Attorney General may, in his discretion, waive the
application of certain statutory provisions that would bar the admission of qualifying aliens.
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as Suarez Dominguez, could seek waivers of inadmissibility. See 519 F.3d 532,
546 (5th Cir. 2008). This ruling conflicted with the Board of Immigration
Appeals’s (BIA’s) interpretation of the law at that time. Suarez Dominguez
stated that he did not apply for a waiver of inadmissibility during his removal
proceedings because it was not available to him under the BIA’s theninterpretation. In February 2015, an IJ denied Suarez Dominguez’s motion to
reopen, noting the motion’s untimeliness as it was filed six-and-a-half years
after Martinez. The IJ concluded that “the interest of finality in immigration
proceedings” took precedence.
Suarez Dominguez next appealed the denial to the BIA. In his brief to
the BIA, he contended that the IJ’s decision should be reversed because “all his
ties were . . . in Florida” and “no notice [of Martinez] was announced or
published outside of the Fifth Circuit’s jurisdiction.” In December 2015, the
BIA dismissed his appeal, stating that “[b]ased on the common law
presumption that every person knows the law, it is well-settled that ignorance
or mistake of law cannot excuse an individual’s actions or inactions.” Suarez
Dominguez timely petitions for review of BIA’s dismissal. He now argues that
the BIA erred by not applying equitable tolling to his motion to reopen.
II. JURISDICTION OVER THIS PETITION
We begin our analysis by determining whether we have jurisdiction to
review the BIA’s decision. Rodriguez v. Holder, 705 F.3d 207, 210 (5th Cir.
2013) (quoting Nehme v. INS, 252 F.3d 415, 420 (5th Cir. 2001)). We review
this question of jurisdiction de novo. Id. (citing Nehme, 252 F.3d at 420).
Because we conclude that we lack jurisdiction over Suarez Dominguez’s
petition, we do not address the merits of his equitable tolling argument.
Suarez Dominguez petitions for review of the BIA’s decision to dismiss
his appeal regarding his motion to reopen his removal proceedings. An alien
can seek to reopen his removal proceedings in two ways: (1) invoking his
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statutory right to reopen under 8 U.S.C. § 1229a(c)(7) or (2) invoking the IJ’s
or BIA’s regulatory power to sua sponte reopen under 8 C.F.R. § 1003.2(a) or
8 C.F.R. § 1003.23(b). Lugo-Resendez v. Lynch, 831 F.3d 337, 340–41 (5th Cir.
2016). With regard to the first option (i.e., a statutory motion to reopen), the
alien can file one such motion, and the motion must be filed within 90 days of
the final removal order. 8 U.S.C. § 1229a(c)(7). The 90-day deadline is subject
to equitable tolling in certain circumstances. Lugo-Resendez, 831 F.3d at 343–
44. With regard to the second option (i.e., a regulatory motion to reopen), the
alien can file at any time. 8 C.F.R. § 1003.2(a); 8 C.F.R. § 1003.23(b)(1).
While we have jurisdiction over petitions seeking review of BIA’s
decisions involving statutory motions to reopen, we do not have jurisdiction
over petitions seeking review of BIA’s decisions concerning regulatory motions
to reopen. See Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249–50 (5th Cir.
2004). The sections of the Code of Federal Regulations governing regulatory
motions to reopen, 8 C.F.R. § 1003.2(a) and 8 C.F.R. § 1003.23(b), commit the
decision to reopen to the IJ’s or BIA’s discretion. See id. Thus, as a reviewing
court, we have “no legal standard” against which to judge the IJ’s or BIA’s
decision. 4 Id. at 250.
Further, we cannot review an issue if the alien fails to exhaust his
administrative remedies by not “first rais[ing] the issue before the BIA, either
In the petitioner’s response to the Government’s 28(j) letter, he argues that this court
has jurisdiction to review regulatory motions to reopen involving an exceptional situation
that merits the exercise of the BIA’s sua sponte authority to reopen. The basis of his
contention is that the BIA had previously announced a standard for the exercise of its
discretion: “[i]n order for a change in the law to qualify as an exceptional situation that merits
the exercise of [BIA’s] discretion . . . , the change must be fundamental in nature and not
merely an incremental development in the state of the law.” In Re G-D-, 22 I. & N. Dec. 1132,
1132 (BIA 1999). While a fundamental legal change may merit the granting of a regulatory
motion to reopen, the BIA still has discretion to deny the motion even if the petitioner has
made out such a claim for relief. See 8 C.F.R. § 1003.2(a) (“The Board has discretion to deny
a motion to reopen even if the party moving has made out a prima facie case for relief.”).
Accordingly, we have no legal standard to review the BIA’s decision in such a case.
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on direct appeal or in a motion to reopen.” Omari v. Holder, 562 F.3d 314, 318
(5th Cir. 2009). We apply the exhaustion requirement strictly and “requir[e]
actual (as opposed to effective) exhaustion.” Id. at 322, 325. Although the
alien’s claim can be proffered in a “less-developed form” to the BIA, he must
“fairly present” the issue so that the BIA has notice of and opportunity to
address the issue that he raises to this court. Id. at 321. This necessarily
entails “affirmative action” on his part. Id.
By contending that the BIA erred by not applying equitable tolling to his
motion to reopen, Suarez Dominguez appears to invoke his statutory right to
file such a motion. While we have jurisdiction to review statutory motions to
reopen, including those involving equitable tolling arguments, see LugoResendez, 831 F.3d at 343–44, Suarez Dominguez has not exhausted his
equitable tolling claim. If an alien elects to file a brief on appeal to the BIA, as
Suarez Dominguez did, “that brief becomes the operative document through
which any issues that a petitioner wishes to have considered must be raised”
in order to meet the exhaustion requirement. Claudio v. Holder, 601 F.3d 316,
319 (5th Cir. 2010). In his brief to the BIA, Suarez Dominguez distinguished
Martinez—a Fifth Circuit decision overruling a prior BIA interpretation of
law—from a BIA decision withdrawing a prior policy based on a statutory
change. He then discussed his career, family, and role in the community.
Though he mentioned that he was “diligent in filing his motion to reopen,” he
addressed neither the 90-day statutory deadline nor equitable tolling of this
deadline in any form. Further, all of his arguments were made to demonstrate
that his case was exceptional, warranting the BIA’s exercise of its sua sponte
authority to reopen proceedings—the exercise of which can occur at any time
(not necessarily within 90 days of the removal order).
Alternatively, if the BIA considers the merits of an issue that is not
explicitly raised by the petitioner, that issue is exhausted. Lopez-Dubon v.
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Holder, 609 F.3d 642, 644 (5th Cir. 2010). This is not the case here. In its
decision, the BIA merely addressed the points that Suarez Dominguez had
raised in his brief in order to support the BIA’s refusal to exercise its sua sponte
authority. Accordingly, the petitioner’s equitable tolling argument has not
been exhausted, and thus, we do not have jurisdiction. 5
Even if we assume arguendo that Suarez Dominguez had exhausted his
administrative remedies with respect to his equitable tolling claim, we still do
not have jurisdiction over his petition. This court lacks jurisdiction to review
a motion to reopen a final removal order against an alien who is removable
because he was convicted of an aggravated felony. See 8 U.S.C. § 1252(a)(2)(C)
(“[N]o court shall have jurisdiction to review any final order of removal against
an alien who is removable by reason of having committed [an aggravated
felony].”); Assaad v. Ashcroft, 378 F.3d 471, 474 (5th Cir. 2004) (per curiam)
(agreeing with other circuits that the power to review final orders of removal
implicitly encompasses the power to review decisions concerning motions to
reopen such orders).

However, this jurisdictional bar does not extend to

“constitutional claims or questions of law raised upon a petition for review.”
8 U.S.C. § 1252(a)(2)(D).
Here, whether equitable tolling applies to Suarez Dominguez’s motion to
reopen is a question of fact, over which we do not have jurisdiction. In LugoResendez, we stated that the application of the doctrine of equitable tolling
involves the consideration of “the individual facts and circumstances of each
case.”

831 F.3d at 344–45 (internal quotation marks omitted) (quoting

Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002) (per curiam)). This
inquiry is “fact-intensive.”

Id. at 344 (internal quotation marks omitted)

Our conclusion is further bolstered by the fact that Lugo-Resendez, in which we held
for the first time equitable tolling could apply to the 90-day statutory deadline, 831 F.3d at
343–44, was not decided until after the BIA’s ruling.
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(quoting Rivera v. Quarterman, 505 F.3d 349, 354 (5th Cir. 2007)).

The

petitioner is not arguing that the BIA applied the wrong legal standard in
resolving his equitable tolling claim—a contention which would involve a
question of law. Cf. Alvarado de Rodriguez v. Holder, 585 F.3d 227, 234 (5th
Cir. 2009) (holding that this court has jurisdiction to review whether the BIA
applied the wrong standard of review to the factual findings of the IJ);
Lawrence v. Lynch, 826 F.3d 198, 203 (4th Cir. 2016) (holding that the court
has jurisdiction to determine whether the BIA applied the correct equitable
tolling standard).

Because the issue at hand is a question of fact, the

jurisdictional bar of 8 U.S.C. § 1252(a)(2)(C) applies.
III. CONCLUSION
The petition for review is DISMISSED for lack of jurisdiction.

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