Enrique Trejo Trejo v. Eric Holder, Jr. , 586 F. App'x 171 ( 2014 )

Case: 14-60197 Document: 00512856367 Page: 1 Date Filed: 12/03/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-60197
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
December 3, 2014
ENRIQUE TREJO TREJO,
Lyle W. Cayce
Clerk
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A088 879 590
Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Enrique Trejo Trejo (Trejo), a citizen and native of Mexico, petitions this
court for review of the order of the Board of Immigration Appeals (BIA) denying
his motion to reconsider the BIA’s dismissal of his appeal from the immigration
judge’s denial of his motion to reopen his removal proceedings. Because Trejo
submitted evidence with his motion to reconsider, the BIA construed the
motion as both a motion to reconsider and a motion to reopen.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-60197
Trejo has filed a timely petition for review of only the BIA’s denial of his
motion to reconsider. Accordingly, we have jurisdiction to review that decision
and do not have jurisdiction to review earlier orders entered in Trejo’s removal
proceedings. See Stone v. INS, 514 U.S. 386, 405 (1995); Kane v. Holder, 581
F.3d 231, 237 n.14 (5th Cir. 2009).
Trejo asserts that the BIA abused its discretion by ruling that he had not
shown exceptional circumstances warranting the favorable exercise of
discretion. Because Trejo’s underlying motion to reopen was untimely,
however, the BIA only considered whether Trejo had shown exceptional
circumstances in deciding whether it should sua sponte reopen Trejo’s removal
proceedings. As this argument challenges only the BIA’s refusal to sua sponte
reopen the removal proceedings, we do not have jurisdiction to consider it. See
Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249-50 (5th Cir. 2004).
Accordingly, this portion of Trejo’s petition for review is dismissed. See Ramos-
Bonilla v. Mukasey, 543 F.3d 216, 220 (5th Cir. 2008).
Trejo argues that the BIA violated his due process rights by upholding
his removal based upon a charge that was based upon a fact, his illegal entry
into the United States in 2004, that was later shown to be incorrect. He
acknowledges that an alien is usually bound by his counsel’s admissions, but
asserts that being bound by the admission that he illegally entered the United
States in 2004 in this case would be improper. He maintains that the BIA
abused its discretion by refusing to reopen his removal proceedings because he
demonstrated prima facie eligibility for adjustment of status by presenting the
approved Form I-130 visa petition that his wife had filed on his behalf. He
asserts that the BIA abused its discretion by failing to consider his motion to
reconsider unopposed because the Department of Homeland Security did not
file a response. Trejo contends that the BIA erroneously ruled that he had not
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No. 14-60197
presented new evidence when he had presented new evidence that Citizen and
Immigration Services had approved the visa petition that his wife had filed on
his behalf.
We have jurisdiction to consider denials of motions to reopen or
reconsider. Nolos v. Holder, 611 F.3d 279, 281 (5th Cir. 2010). Such motions
are disfavored, see Lara v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000), and
we review the denial of a motion to reopen or a motion to reconsider under a
“highly deferential abuse-of-discretion standard.” Zhao v. Gonzales, 404 F.3d
295, 303 (5th Cir. 2005). The BIA’s ruling will stand, even if erroneous, “so
long as it is not capricious, racially invidious, utterly without foundation in the
evidence, or otherwise so irrational that it is arbitrary rather than the result
of any perceptible rational approach.” Id. at 304 (internal quotation marks and
citation omitted).
The BIA determined that Trejo’s underlying motion to reopen was
untimely and that Trejo had not shown that this determination was incorrect
in his motion to reconsider. It further ruled that to the extent that Trejo’s
motion to reconsider was properly construed as a motion to reopen, it was
untimely and numerically barred. Trejo does not challenge these rulings in
this court or argue that any exception to the time and numerical limitations
apply, and he has therefore waived any such challenge he could have raised.
See Chambers v. Mukasey, 520 F.3d 445, 448 n.1 (5th Cir. 2008).
Trejo’s motion to reconsider challenged the denial of his underlying
motion to reopen. As Trejo does not dispute that his underlying motion to
reopen was untimely, the only relief available to him was sua sponte reopening
of his removal proceedings. See Ramos-Bonilla, 543 F.3d at 219. As noted
above, however, we do not have jurisdiction to consider challenges to the denial
of sua sponte reopening. See Enriquez-Alvarado, 371 F.3d at 249-50.
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Accordingly, even if his challenges to the various alternative rulings made by
the BIA were meritorious, Trejo could not obtain relief. See Ramos-Bonilla,
543 F.3d at 219. Accordingly, we need not consider Trejo’s challenges to the
alternative rulings of the BIA.
Furthermore, Trejo’s due process claim is without merit; while Trejo
presented evidence that he legally entered the United States in 1999, this is
not inconsistent with his admission that he had illegally entered the United
States in 2004 as Trejo could have legally resided in the United States in 1999,
returned to Mexico, and illegally entered the United States in 2004.
Accordingly, Trejo has not shown that the BIA’s factual determination that he
illegally entered the United States in 2004 was an abuse of discretion. See
Zhao, 404 F.3d at 303-04.
PETITION FOR REVIEW DENIED IN PART, DISMISSED IN PART.
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