Esparza-Ruvalcaba v. Holder, Jr. , 481 F. App'x 453 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
September 27, 2012
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JESUS ESPARZA-RUVALCABA,
Petitioner, No. 12-9509
v. (Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
ORDER AND JUDGMENT*
Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.
After examining the briefs and the administrative record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore ordered
submitted without oral argument.
Petitioner Jesus Esparza-Ruvalcaba, proceeding pro se, petitions for review of the
Board of Immigration Appeals’ dismissal of his appeal from the immigration judge’s
denial of his motion to reopen and reconsider and for review of the BIA’s denial of his
motion to remand. Both Petitioner’s motion to reopen and reconsider and his motion for
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
remand were based in part on his allegation that he received ineffective assistance of
counsel during the initial proceeding.
In addition to challenging the BIA’s order, Petitioner apparently raises two other
issues for review. First, he argues the immigration judge’s denial of his request for a
continuance violated his due process rights. Second, he challenges the denial of his
request for voluntary departure. Because Petitioner did not raise the due process
argument before the BIA, we lack jurisdiction to consider it. Torres de la Cruz v.
Maurer, 483 F.3d 1013, 1017 (10th Cir. 2007). We also “lack jurisdiction to review an
immigration judge’s refusal to grant voluntary departure.” Ekasinta v. Gonzales, 415
F.3d 1188, 1190 (10th Cir. 2005). We therefore review only the BIA’s order dismissing
the appeal and denying Petitioner’s motion for remand.
We review BIA orders denying motions to reopen, motions for reconsideration,
and motions to remand for abuse of discretion. Infanzon v. Ashcroft, 386 F.3d 1359, 1362
(10th Cir. 2004); Belay-Gebru v. I.N.S., 327 F.3d 998, 1000 n.5 (10th Cir. 2003);
Witjaksono v. Holder, 573 F.3d 968, 978-79 (10th Cir. 2009). “The BIA abuses its
discretion when its decision provides no rational explanation, inexplicably departs from
established policies, is devoid of any reasoning, or contains only summary or conclusory
statements.” Infanzon, 386 F.3d at 1362 (quoting Gurung v. Ashcroft, 371 F.3d 718, 720-
21 (10th Cir. 2004)).
Nothing in the briefs or the administrative record persuades us there was any error
in the BIA’s order. Therefore, for substantially the same reasons given by the BIA, we
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DENY Petitioner’s petition for review.
Entered for the Court
Monroe G. McKay
Circuit Judge
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