Tito Alvarado-Rabanales v. Eric Holder, Jr. , 484 F. App'x 946 ( 2012 )

Case: 12-60055 Document: 00511948294 Page: 1 Date Filed: 08/07/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 7, 2012
No. 12-60055
Summary Calendar Lyle W. Cayce
Clerk
TITO ALVARADO-RABANALES,
Petitioner
v.
ERIC H. HOLDER, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A076 819 639
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Tito Alvarado-Rabanales (Alvarado), a native and citizen of Guatemala,
was ordered removed from the United States on April 7, 1998. On April 27,
1998, Alvarado was removed from the United States. Alvarado reentered the
United States soon after he was ordered removed. He filed a motion to reopen
with the Immigration Judge (IJ) on July 25, 2011, over 13 years after the final
administrative removal order was entered and executed. The IJ denied
Alvarado’s motion to reopen due to lack of jurisdiction because, inter alia,
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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No. 12-60055
Alvarado had been removed from the United States before filing the motion. The
Board of Immigration Appeals (BIA) concluded that the IJ properly determined
that he was without jurisdiction to consider Alvarado’s motion to reopen and
accordingly dismissed the appeal. Alvarado now petitions this court for review.
Alvarado raises a number of challenges to the validity of the IJ’s April 7,
1998 order of removal. Under 8 U.S.C. § 1252(a) and (b), we have jurisdiction
to review final orders of removal. However, “[t]he petition for review must be
filed not later than 30 days after the date of the final order of removal.”
§ 1252(b)(1); see also Roy v. Ashcroft, 389 F.3d 132, 135 (5th Cir. 2004). “This
deadline is jurisdictional.” Navarro-Miranda v. Ashcroft, 330 F.3d 672, 676 (5th
Cir. 2003).
In this case, Alvarado did not file a petition for review challenging the IJ’s
April 7, 1998 order within 30 days of that order. Therefore, we lack jurisdiction
to consider the challenges he raises to the validity of that order.
Our jurisdiction is limited to reviewing the BIA’s decision to dismiss
Alvarado’s appeal of the IJ’s denial of his motion to reopen for lack of
jurisdiction. The BIA dismissed Alvarado’s motion to reopen as a matter of law.
Therefore, the BIA’s decision is reviewed de novo. See Ovalles v. Holder, 577
F.3d 288, 291 (5th Cir. 2009).
Alvarado argues that the IJ erred in treating the post-departure bar in 8
C.F.R. § 1003.23(b)(1) as limiting the jurisdiction of the IJ to consider his motion
to reopen and that the BIA erred in dismissing his appeal. The post-departure
bar provides that a motion to reopen “shall not be made by or on behalf of a
person who is the subject of removal, deportation, or exclusion proceedings
subsequent to his or her departure from the United States.” § 1003.23(b)(1).
Alvarado first argues that the post-departure bar conflicts with
§ 1229a(c)(7) and should therefore be held invalid. Section 1229a(c)(7) allows an
alien to “file one motion to reopen” removal proceedings “within 90 days of the
date of entry of a final administrative order of removal” and does not mention a
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limitation on post-departure motions. § 1229a(c)(7)(A), (C)(i). We examined a
similar challenge to the validity of the post-departure bar in Ovalles, 577 F.3d
at 292-96. We did not determine whether the post-departure bar conflicted with
the statutes governing motions to reconsider and reopen. Id. at 295. Instead,
we held that the BIA properly determined that it lacked jurisdiction over the
alien’s motion to reconsider or reopen because the alien filed his motion after the
expiration of the 30-day deadline for filing a motion to reconsider and the 90-day
deadline for filing a motion to reopen. Id. at 295-96.
As in Ovalles, the motion to reopen in this case is untimely. The order of
removal was entered on April 7, 1998. Alvarado filed a motion to reopen on July
25, 2011. Therefore, we need not determine whether the post-departure bar
conflicts with § 1229a(c)(7). See id.
Alvarado also argues that the IJ and BIA should have exercised their
authority to sua sponte reopen the April 7, 1998 order of removal. In Enriquez-
Alvarado v. Ashcroft, 371 F.3d 246, 249-50 (5th Cir. 2004), we held that because
there are no meaningful standards set forth in the regulations against which to
judge the discretionary authority to sua sponte reopen removal proceedings, we
lacked jurisdiction to review whether the IJ erred by not exercising its sua
sponte authority. Thus, we lack jurisdiction to review the IJ’s and BIA’s
decisions not to reopen Alvarado’s removal proceeding sua sponte. See Enriquez-
Alvarado, 371 F.3d at 249-50; see also Lopez-Dubon v. Holder, 609 F.3d 642, 647
(5th Cir. 2010).
For the foregoing reasons, the petition for review is DISMISSED in part
and DENIED in part.
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