Canchola-Velez v. Mukasey , 307 F. App'x 871 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 23, 2009
No. 08-60331
Summary Calendar Charles R. Fulbruge III
Clerk
ROBERTO CANCHOLA-VELEZ, also known as Ruben Ayala, also known as
Robert Canchola, also known as Roberto Vasquez, also known as Enrique
Hernandez
Petitioner
v.
MARK FILIP, Acting U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A36 758 828
Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Petitioner Roberto Canchola-Velez petitions this court to review the order
of the Board of Immigration Appeals (BIA) denying his motion to reopen his
removal proceedings. Canchola-Velez raises two issues for the first time:
whether the regulation that prohibits an alien from filing a motion to reopen
subsequent to removal is ultra vires because it conflicts with 8 U.S.C. §
*
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should not be published and is not precedent except under the limited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.
No. 08-60331
1229a(c)(7)(A) and whether he should be permitted to file the motion because his
“exile” entitles him to the same protections given to refugees who seek asylum.
Because Canchola-Velez did not raise the two issues in his motion to reopen or
in a subsequent motion to reconsider before the BIA, we lack jurisdiction to
consider them. See Wang v. Ashcroft, 260 F.3d 448, 451, 452-53 (5th Cir. 2001).
Canchola-Velez also challenges the BIA’s determination that it lacked
jurisdiction to reopen his removal proceedings. He asserts that his former
attorney’s ineffectiveness amounted to a denial of due process that justifies
reopening the proceedings on equitable grounds. In Navarro-Miranda v.
Ashcroft, 330 F.3d 672, 675-76 (5th Cir. 2003), we upheld as reasonable the BIA’s
interpretation of 8 C.F.R. § 1003.2(d) (formerly found in 8 C.F.R. § 3.2(d)) as
removing its jurisdiction to reopen the removal proceedings of a deported alien.
We are “bound by Navarro-Miranda under this circuit’s strict application of stare
decisis.” Castillo-Perales v. Mukasey, 2008 WL 4775782, at *2-3 (5th Cir. Nov.
2, 2008)(unpublished). Accordingly, we defer to the BIA’s interpretation of
§ 1003.2(d).
It is not necessary to reach the remaining issue raised by Canchola-Velez,
whether his former attorney’s ineffectiveness tolled the statute of limitations for
filing a motion to reopen. See Am. Eagle Airlines, Inc. v. Air Line Pilots Ass’n,
Int’l, 343 F.3d 401, 411 n.6 (5th Cir. 2003).
The petition for review is DENIED.
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