Case: 16-60018 Document: 00513941296 Page: 1 Date Filed: 04/05/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-60018 FILED
Summary Calendar April 5, 2017
Lyle W. Cayce
Clerk
MANUEL BAEZA HERNANDEZ,
Petitioner
v.
JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A044 350 585
Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
Manuel Baeza Hernandez, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals (BIA) order dismissing his appeal
and affirming the Immigration Judge’s (IJ) denial of his statutory motion to
reopen and refusal to reopen proceedings sua sponte. The Government moves
to dismiss the petition for review for lack of jurisdiction.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-60018 Document: 00513941296 Page: 2 Date Filed: 04/05/2017
No. 16-60018
Baeza Hernandez argues that the Supreme Court’s decision in Mata v.
Lynch, 135 S. Ct. 2150, 2153-55 (2015), held that this court has jurisdiction to
review all motions to reopen regardless of the reason for the BIA’s denial of the
motion. However, we lack jurisdiction to review whether the BIA should have
exercised its sua sponte authority to reopen a case. Enriquez-Alvarado v.
Ashcroft, 371 F.3d 246, 248-50 (5th Cir. 2004). The ruling in Mata did not
disturb that rule and, thus, we lack jurisdiction to review the BIA’s decision
not to reopen the proceedings sua sponte. See Mata, 135 S. Ct. at 2155;
Enriquez-Alvarado, 371 F.3d at 250.
Baeza Hernandez also contends that the BIA erred in affirming the IJ’s
determination that the departure bar regulation applied to his motion to
reopen sua sponte and asserts that this action constituted a gross miscarriage
of justice. Given that these arguments also challenge the decision to deny the
motion to reopen sua sponte, we lack jurisdiction to review this decision. See
Enriquez-Alvarado, 371 F.3d at 250.
Finally, Baeza Hernandez asks this court to remand this case to the BIA
for a determination of whether his motion to reopen should be considered
timely based on equitable tolling. Because the issue of equitable tolling was
not properly exhausted, we lack jurisdiction to consider this claim. See Omari
v. Holder, 562 F.3d 314, 318-19 (5th Cir. 2009).
The motion to dismiss the petition for review for lack of jurisdiction is
GRANTED, and the petition for review is DISMISSED FOR LACK OF
JURISDICTION.
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