Julio Mujica v. Loretta Lynch , 670 F. App'x 313 ( 2016 )

Case: 15-60673 Document: 00513753768 Page: 1 Date Filed: 11/09/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-60673 FILED
Summary Calendar November 9, 2016
Lyle W. Cayce
Clerk
JULIO MUJICA,
Petitioner
v.
LORETTA LYNCH, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A090 373 986
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
Julio Mujica, a native and citizen of Mexico, seeks review of an order of
the Board of Immigration Appeals (BIA) upholding the decision of the
Immigration Judge (IJ) denying his application for adjustment of status under
the Immigration and Nationality Act. Mujica now argues that “an applicant
for adjustment of status need only prove a procedural regularity in his entry,”
and that he “meets the definition for admission, not because he was afforded
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 15-60673 Document: 00513753768 Page: 2 Date Filed: 11/09/2016
No. 15-60673
[temporary legal residence], but because he left the United States and was
inspected” upon his return. Mujica does not reurge the arguments that he
made before the IJ and BIA. The Government moves to dismiss Mujica’s
petition for lack of jurisdiction on the ground that Mujica failed to present to
the BIA the arguments he now urges in this brief. The Government argues
that the issues are, therefore, unexhausted and unreviewable. Alternatively,
the Government moves for summary denial on the ground that Mujica fails to
address either of the BIA’s reasons for upholding the IJ’s decision. The
Government asserts that Mujica’s failure to brief the BIA’s reasons waives any
challenge to the dismissal of his appeal. Mujica opposes the motions.
We may exercise jurisdiction over Mujica’s petition for review only if he
has “exhausted all administrative remedies available to [him] as of right” on
these issues. 8 U.S.C. § 1252(d)(1). “A remedy is available as of right if (1) the
petitioner could have argued the claim before the BIA, and (2) the BIA has
adequate mechanisms to address and remedy such a claim.” Omari v. Holder,
562 F.3d 314, 318-19 (5th Cir. 2009). That “the BIA had sufficient notice of-
and opportunities to address-the issues” presented is not sufficient to give this
court jurisdiction. Id. at 321. An alien meets the exhaustion requirement only
if he has “explicitly” raised an issue before the BIA on direct appeal, a motion
to reopen, or a motion for reconsideration. Id. at 320-21 (discussing a motion
for reconsideration); see also Toledo-Hernandez v. Mukasey, 521 F.3d 332, 334
(5th Cir. 2008) (addressing direct appeal or motion to reopen); Heaven v.
Gonzales, 473 F.3d 167, 177 (5th Cir. 2006) (same). This requirement ensures
that the BIA is provided with adequate notice and opportunity to address those
issues it should address, including its own legal errors, using its expertise in
immigration matters. Omari, 562 F.3d at 321-22.
2
Case: 15-60673 Document: 00513753768 Page: 3 Date Filed: 11/09/2016
No. 15-60673
Mujica did not present the BIA with the argument he advances in this
court. Thus, we lack jurisdiction to entertain his petition for review.
Mujica has also filed a motion requesting that this court remand his
petition for review to the BIA in light of Gomez v. Lynch, 831 F.3d 652 (5th Cir.
2016) (holding that the petitioner’s entry into the United States following
inspection while holding temporary resident status constituted a procedurally
regular admission under 8 U.S.C. § 1255(a)). Mujica could have presented his
argument regarding lawful entrance while holding temporary resident status
to the IJ and introduced some evidence to support it. He also could have argued
it to the BIA as there was some authority supporting such an argument. See
In re Castro Valdez, 2012 WL 3911586, at *2-3 (BIA Aug. 13, 2012). He did
neither. Notably, this court cited Castro Valdez in its opinion in Gomez and
specifically distinguished the arguments set forth in that case from the
arguments that Mujica urged in his appeal to the BIA. Gomez, 2016 WL
4169123, at *8 n.16 (citing Matter of Mujica, 2015 WL 5173569, at *1 (BIA Aug.
28, 2015)). Because this issue is unexhausted, we lack jurisdiction to entertain
it. Moreover, the BIA would have no authority to grant relief under Gomez
given the absence of evidence to support Mujica’s argument regarding his
procedurally regular entry.
Accordingly, the Government’s motion to dismiss is GRANTED, and the
petition for review is DISMISSED for lack of jurisdiction. The Government’s
motion for summary denial is DENIED as moot. Mujica’s motion to remand is
DENIED.
3