Elvis Barillas-Rivera v. Loretta Lynch , 668 F. App'x 81 ( 2016 )

Case: 15-60188 Document: 00513636620 Page: 1 Date Filed: 08/15/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-60188
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
August 15, 2016
ELVIS STEVE BARILLAS-RIVERA,
Lyle W. Cayce
Clerk
Petitioner
v.
LORETTA LYNCH, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A070 618 681
Before BARKSDALE, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
Elvis Steve Barillas-Rivera, native and citizen of Guatemala, became a
lawful permanent resident of the United States in 2002. In 2009, he was
convicted of a state controlled-substance offense; accordingly, he was found to
be deportable pursuant to 8 U.S.C. § 1227(a)(2)(B)(i). Barillas applied for relief
in the forms of: cancellation of removal; asylum; withholding of removal; and
protection under the Convention Against Torture (CAT).
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 15-60188
At his removal hearing, the immigration judge (IJ) noted Barillas’ 2009
state-law burglary conviction may be considered an aggravated felony under 8
U.S.C. § 1101(a)(43)(G), which would preclude him from establishing his
eligibility for cancellation of removal, asylum, and withholding of removal. See
Moncrieffe v. Holder, 133 S. Ct. 1678, 1682 & n.1 (2013). Without reaching the
merits of those applications, the IJ determined Barillas failed to meet his
statutorily-imposed burden of proving that he had not been convicted of an
aggravated felony. After hearing evidence, the IJ also denied Barillas’ request
for protection under the CAT, which is not at issue here.
Barillas unsuccessfully challenged the IJ’s decision in an appeal, and in
two motions to reopen filed with the Board of Immigration Appeals (BIA). He
then filed a petition for review in this court, which was dismissed for lack of
jurisdiction. Barillas-Rivera v. Holder, 589 F. App’x 307, 308 (5th Cir. 2015).
Subsequently, Barillas filed a third motion with the BIA, which it
construed as both a motion to reconsider, and a motion to reopen. The BIA:
denied the motion to reconsider as untimely; and denied the motion to reopen
as untimely and numerically barred. It also determined the motion to reopen
did not contain new facts, and did not warrant the exercise of the BIA’s
discretionary authority to reopen the proceedings sua sponte. Barillas
challenges that decision.
His petition for review is timely only as to the BIA’s denial of his third
motion. 8 U.S.C. § 1252(b)(1) (a “petition for review must be filed not later
than 30 days after the date of the final order of removal”); therefore, we lack
jurisdiction over Barillas’ petition for review to the extent it asserts any error
with respect to any previous decisions by the IJ or BIA. See Navarro-Miranda
v. Ashcroft, 330 F.3d 672, 676 (5th Cir. 2003).
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No. 15-60188
Our jurisdiction to review final orders of removal “encompasses review
of decisions refusing to reopen or reconsider such orders”. Mata v. Lynch, 135
S. Ct. 2150, 2154 (2015); see § 1252(b)(6). Nevertheless, because Barillas was
ordered deported due to a controlled-substance offense, our jurisdiction is
limited to review the denial of his motion only on legal or constitutional
grounds. See § 1252(a)(2)(C), (a)(2)(D); see Ramos-Bonilla v. Mukasey, 543
F.3d 216, 219–20 (5th Cir. 2008).
Barillas contends the BIA erred in construing his motion to reopen as a
motion to reconsider. Assuming, arguendo, he presents a legal argument
conferring jurisdiction under § 1252(a)(2)(D), the assertion is unavailing.
Barillas maintains, in the light of recent developments in the law, the BIA
erred by determining he failed to show he was statutorily eligible for relief from
removal. Contrary to his assertion, In re X-G-W-, 22 I. & N. Dec. 71 (BIA 1998),
superseded by In re G-C-L-, 23 I. & N. Dec. 359 (BIA 2002), does not stand for
the proposition that a motion to reopen is the proper vehicle for addressing
changes in the law; therefore, the BIA did not err in construing the motion as
one to reconsider. See Zhao v. Gonzales, 404 F.3d 295, 301 (5th Cir. 2005)
(noting a motion to reopen seeks to introduce new evidence, and a motion to
reconsider seeks reevaluation of the record evidence only). Barillas’ challenge
to the BIA’s construction of his motion is denied.
Moreover, because the BIA also considered the motion as one to reopen,
and determined it was untimely and numerically barred (a conclusion Barillas
does not challenge), it was not required to proceed to the merits of his motion.
See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“[a]s a general rule courts and
agencies are not required to make findings on issues the decision of which is
unnecessary to the results they reach”). In any event, a request for review of
the denial of discretionary relief, even if cloaked in legal terms, is not a
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question of law for purposes of § 1252(a)(2)(D). See Hadwani v. Gonzales, 445
F.3d 798, 800–01 (5th Cir. 2006).
Finally, our court lacks jurisdiction to review the BIA’s refusal to
reopen this matter sua sponte. See Ramos-Bonilla, 543 F.3d at 220. The
Supreme Court’s recent decision in Mata did not disturb our court’s precedent
on this point. 135 S. Ct. at 2155 (assuming, arguendo, lack of jurisdiction to
review the BIA’s use of its discretionary power to sua sponte reopen).
DENIED IN PART, DISMISSED IN PART.
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