Aristeo Sanchez v. Loretta Lynch

Filing

UNPUBLISHED OPINION FILED. [16-60592 Affirmed in Part and Dismissed for Lack of Jurisdiction in Part] Judge: CDK , Judge: JES , Judge: SAH Mandate issue date is 12/26/2017 [16-60592]

Case: 16-60592

Document: 00514224040

Page: 1

Date Filed: 11/03/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-60592
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
November 3, 2017
Lyle W. Cayce
Clerk

ARISTEO SANCHEZ,
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. A091 096 457
Before KING, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *

In 2004, Aristeo Sanchez was convicted in a Texas state court of
possession of cocaine.

Sanchez was removed to Mexico based on his

commission of the offense, which was deemed both an aggravated felony and a
controlled-substance offense. Nine years later, in 2013, Sanchez filed a motion
to reopen the removal proceedings based on the Supreme Court’s decision in
Lopez v. Gonzales, 549 U.S. 47 (2006). Sanchez was denied relief, and 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*

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petition for review in this court was dismissed for lack of jurisdiction because
it was untimely.
Sanchez filed with the Board of Immigration Appeals (BIA) a second
motion to reopen its decision denying his original motion to reopen. The motion
was based on his counsel’s failure to file a timely petition for review of the
decision denying his original motion to reopen. The BIA denied the motion as
both untimely and number-barred. The BIA also denied sua sponte reopening,
concluding that Sanchez’s counsel’s “failure to meet the Court of Appeals for
the Fifth Circuit’s filing deadline for appealing the Board’s decision does not
demonstrate a sufficient basis to exercise our sua sponte authority to reopen
proceedings.”
Sanchez filed a third motion to reopen, again based on counsel’s
ineffectiveness in failing to file a timely petition for review. The BIA again
denied the motion as untimely and number-barred. The BIA also rejected
Sanchez’s claim that he was entitled to equitable tolling based on counsel’s
ineffectiveness. Sanchez has filed a timely petition for review of the BIA’s
order denying this third motion to reopen.
In his petition for review, Sanchez does not raise any argument directly
challenging the denial of his current motion to reopen. Rather, he proceeds as
if the BIA has reopened the proceedings, and he argues that his original motion
to reopen was timely because equitable tolling of the statutory 90-day deadline
was warranted due to the departure-bar regulations. He further argues that
the departure-bar regulations are “wholly invalid.”
This court will not raise and discuss legal issues that are not asserted by
a petitioner. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003) (per
curiam) (citing Brinkmann v. Dallas Cty. Deputy Sheriff Abner, 813 F.2d 744,
748 (5th Cir. 1987)). Sanchez has abandoned any argument that the BIA erred

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in determining that his current motion to reopen was untimely and
numerically barred, or in rejecting his claim for equitable tolling based on
counsel’s failure to file a timely petition for review. See Soadjede, 324 F.3d at
833. Additionally, we lack jurisdiction to consider Sanchez’s current claims
because Sanchez’s petition for review was timely as to only the BIA’s denial of
his third motion to reopen, and because his claims were not exhausted before
the BIA. See Omari v. Holder, 562 F.3d 314, 321 (5th Cir. 2009); see also
Barillas-Rivera v. Lynch, 668 F. App’x 81, 82 (5th Cir. 2016).
PETITION DENIED, in part, and DISMISSED, in part.

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