FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 28, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
ONG VUE,
Petitioner,
v. No. 18-9517
(Petition for Review)
MATTHEW G. WHITAKER,
Acting United States Attorney General,
Respondent.
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ORDER AND JUDGMENT**
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Before HOLMES, O’BRIEN, and CARSON, Circuit Judges.
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Pro se petitioner Ong Vue, a native and citizen of Laos, seeks review of the
decision of the Board of Immigration Appeals (BIA) denying his petition to reopen
his removal proceedings. We dismiss the petition for review and deny Vue’s pending
motions.
In accordance with Rule 43(c)(2) of the Federal Rules of Appellate
Procedure, Matthew G. Whitaker is substituted for Jefferson B. Sessions, III, as the
respondent in this action.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I. Background
Vue entered the United States in 1985. In 1998 he entered a plea of no contest
in Oklahoma state court to one count of murder in the first degree and two counts of
shooting with intent to kill. He was sentenced to life in prison for the murder
conviction and two 20-year terms for the shooting-with-intent-to-kill convictions.
In 1999, Vue was issued a Notice to Appear, charging him with removability
pursuant to 8 U.S.C. §§ 1227(a)(2)(A)(iii) (alien convicted of an aggravated felony)
and 1227(a)(2)(C) (alien convicted of a firearms offense). On August 24, 1999, an IJ
ordered Vue removed to Thailand or Laos. Vue did not appeal.
Almost 18 years later, on July 13, 2017, Vue filed the underlying motion to
reopen. A different IJ denied the motion, concluding (1) the motion was time barred
because it was filed more than 90 days after the initial removal order; (2) equitable
tolling was not warranted because he did not show he diligently pursued his rights
and he was prevented from timely filing by extraordinary circumstances; (3) his due
process right to counsel in his first immigration hearing was not violated because the
IJ provided an opportunity for him to obtain counsel, which he declined; (4) his claim
of ineffective assistance of counsel in his Oklahoma state criminal proceedings did
not affect the immigration proceedings unless and until his convictions were
overturned, which they had not been; and (5) sua sponte reopening was not warranted
because his situation was not truly exceptional. The BIA dismissed Vue’s appeal
from the IJ’s decision.
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II. Discussion
“[O]ur jurisdiction to review an order of removal against an aggravated felon
is significantly limited: we may review the removal order only to the extent
petitioner raises constitutional or legal challenges to the order.” Waugh v. Holder,
642 F.3d 1279, 1281 (10th Cir. 2011) (citing 8 U.S.C. § 1252(a)(2)(C), (D)).
Because Vue is proceeding pro se, we construe his filings liberally. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007); see also United States v. Pinson, 584 F.3d 972, 975
(10th Cir. 2009) (“[W]e must construe [a pro se litigant’s] arguments liberally; this
rule of liberal construction stops, however, at the point at which we begin to serve as
his advocate.”).
Vue argues for equitable tolling of the time limit to file a motion to reopen.
To the extent he is challenging the BIA’s refusal to sua sponte reopen, we lack
jurisdiction to review the decision. Salgado-Toribio v. Holder, 713 F.3d 1267,
1270-71 (10th Cir. 2013) (holding court of appeals lacks jurisdiction to review BIA’s
discretionary decision that alien’s situation did not warrant sua sponte reopening of
his removal proceedings). To the extent he is challenging the BIA’s discretionary
decision not to permit him to file a late motion to reopen, we also lack jurisdiction to
review the decision. See Sosa-Valenzuela v. Holder, 692 F.3d 1103, 1115 (10th Cir.
2012) (“[W]e do not have jurisdiction to review an exercise of discretion.”); Riley v.
INS, 310 F.3d 1253, 1257 (10th Cir. 2002) (indicating denial of a motion to reopen is
a discretionary decision). Because we lack jurisdiction to review the BIA’s decision
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not to reopen his removal proceedings, we dismiss the petition for review without
addressing Vue’s remaining arguments for relief from removal.
III. Conclusion
The petition for review is dismissed, as are 1) his motion for a writ of habeas
corpus or, in the alternative, appointment of counsel, 2) his motion to consolidate this
appeal with another of his appeals (which is now moot),1 and 3) his request to
proceed on appeal in forma pauperis (IFP). Leave to proceed on appeal without
prepayment of fees is a privilege extended only to those who qualify for IFP status, to
wit, impecunious circumstances and the presentation of non-frivolous issues. See
Salgado-Toribio, 713 F.3d at 1270 (denying IFP in immigration case under 28 U.S.C.
§ 1915(e)’s “frivolous or malicious” standard). Since we have resolved his petition
for review, prepayment of fees is no longer an issue. The relevant statute, 28 U.S.C.
§ 1915(a), does not permit litigants to avoid payment of fees; only prepayment of
fees is excused. Accordingly, Vue is required to pay all fees ($505.00). Payment is
to be made to the Clerk of this Court. See Fed. R. App. P. 15(e).
Entered for the Court
Terrence L. O’Brien
Circuit Judge
1
The companion case has already been decided. Vue v. Henke, No. 18-6101,
2018 WL 4026744 (10th Cir. 2018) (unpublished), petition for cert. docketed,
(U.S. Oct. 23, 2018) (No. 18-6407).
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