Case: 20-60488 Document: 00516306389 Page: 1 Date Filed: 05/04/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 4, 2022
No. 20-60488 Lyle W. Cayce
Clerk
Norma Noemi Carranza-Albayero,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of and Order of the
Board of Immigration Appeals
BIA No. A094 797 352
Before Wiener, Graves, and Duncan, Circuit Judges.
James E. Graves, Jr., Circuit Judge:*
Norma Noemi Carranza-Albayero seeks review of a Board of
Immigration Appeals (BIA) order denying her motion to reconsider its
summary affirmance of an immigration judge’s (IJ) refusal to reopen her
removal proceedings. Carranza-Albayero contends that the BIA failed to
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 20-60488
address her argument that she received faulty notice of her removal order.
Because we lack jurisdiction over this matter, we dismiss it.
I.
Carranza-Albayero is an El Salvadorean citizen who entered the
United States without inspection in 2006. The day she entered the United
States, she was charged as removable and was personally served with a notice
to appear (NTA) at a removal hearing. The NTA informed her of the
consequences of failing to appear at the hearing and instructed her to keep
the immigration court apprised of any changes to her mailing address.
Carranza-Albayero did not appear at her hearing and was ordered removed
in absentia on July 13, 2006, the date specified on her NTA. The removal
order was mailed to Carranza-Albayero’s address of record in Houston, but
it was returned with a “wrong address” notation.
Carranza-Albayero learned about the removal order twelve years later
when Immigration and Customs Enforcement agents came to her door in
Virginia. She then moved to reopen her proceedings and rescind the in
absentia removal order. An IJ denied that motion, refusing to exercise his
reopening authority on a number of grounds. Carranza-Albayero appealed
that decision to the BIA, but she challenged only the IJ’s refusal to reopen
the proceedings sua sponte. The BIA summarily affirmed. Carranza-
Albayero did not appeal the summary denial to this court. Instead she asked
the BIA to reconsider, again challenging only the IJ’s refusal to exercise its
sua sponte reopening authority. The BIA refused to reconsider its initial
affirmance, this time issuing a reasoned opinion. Carranza-Albayero timely
petitioned this court for review of the BIA’s denial of her motion for
reconsideration.
The parties agree that we have jurisdiction under 8 U.S.C. § 1252, at
least insofar as Carranza-Albayero seeks review of the BIA’s denial of the
motion to reconsider. We disagree.
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II.
This appeal highlights the procedural and jurisdictional hurdles to
challenging in absentia removal orders. An alien who fails to appear at her
removal hearing despite written notice “shall be ordered removed in
absentia” unless the government fails to prove her removability. 8 U.S.C.
§ 1229a(b)(5)(A). An alien seeking to challenge an in absentia removal order
must file a motion with the immigration court, which either seeks reopening
and reconsideration of the removal order or asserts that her NTA was faulty
under the Immigration and Naturalization Act. Id. § 1229a(b)(5)(C). See
Singh v. Gonzales, 436 F.3d 484, 489 (5th Cir. 2006). Carranza-Albayero
received proper notice of her removal proceedings under the INA. This case
concerns her attempt to get the immigration judge to reopen and reconsider
her in absentia removal order.
A.
An alien may file one motion to reconsider a decision that she is
removable. 8 C.F.R. § 1003.23(b). But she has a few options for how to seek
reconsideration. She can invoke: (i) the immigration court’s regulatory power
to “sua sponte” reopen proceedings under 8 C.F.R. §§ 1003.23(b) or
1003.2(a); and/or (ii) her statutory right to reopen proceedings under
8 U.S.C. § 1229a(c)(7). See Lugo-Resendez v. Lynch, 831 F.3d 337, 341 (5th
Cir. 2016). In a regulatory motion to reopen, the petitioner invokes the IJ’s
discretionary authority to reopen removal proceedings “sua sponte.”
Gonzalez-Cantu v. Sessions, 866 F.3d 302, 304 (5th Cir. 2017). Whichever
route the petitioner chooses, “a motion to reopen that does not comply with
the requirements of § 1229a(c)(7) must be construed as a regulatory motion
to reopen—even if it is labeled as a statutory motion to reopen.” Lugo-
Resendez, 831 F.3d at 342. One such requirement is timeliness. While a
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regulatory motion may be filed “at any time,” 1 a motion for statutory
reopening must be filed within ninety days of the final removal order.
8 U.S.C. § 1229a(c)(7)(C)(i). The deadline for statutory reopening is,
however, subject to tolling. Lugo-Resendez, 831 F.3d at 344-45. Thus, an
untimely motion to reopen that does not seek equitable tolling will be deemed
a motion for regulatory reopening regardless of how the motion is labeled.
B.
The automatic conversion of statutorily deficient motions to reopen
has jurisdictional significance. While circuit courts have jurisdiction to
review denials of motions for statutory reopening, see Mata v. Lynch, 576 U.S.
143, 149 (2015), they lack jurisdiction to review decisions to decline sua sponte
(i.e. regulatory) reopening. Hernandez-Castillo v. Sessions, 875 F.3d 199, 206
(5th Cir. 2017). We may review appeals from a BIA decision involving both
statutory and regulatory reopening power, but only insofar as the decision
involves statutory reopening. Mata, 576 U.S. at 149. And because we
automatically convert statutorily deficient motions to reopen into motions for
regulatory reopening, the BIA’s treatment of an untimely motion to reopen
is generally unreviewable in this court. Lugo-Resendez, 831 F.3d at 342. The
statutory deadline for motions to reopen, however, is subject to tolling. Id. at
343. Thus, although a statutorily deficient motion to reopen—e.g., an
untimely motion to reopen—will be treated as a regulatory motion (thus
1
Section 1229a(c)(6)(B) provides that a motion to reconsider “must be filed within
30 days of the date of entry of a final administrative order of removal,” and section
1229a(c)(7)(C)(i) mandates that a motion to reopen “shall be filed within 90 days of the
date of entry of a final administrative order of removal.” The Code of Federal Regulations
provides that an immigration judge may upon “his or her own motion” “at any time . . .
reopen or reconsider any case in which he or she has made a decision, unless jurisdiction is
vested with the Board of Immigration Appeals.” 8 C.F.R. § 1003.23(b) (emphasis added).
The regulations also provide that the BIA “may at any time reopen or reconsider” on its
own motion any case in which it has rendered a decision. 8 C.F.R. § 1003.2(a) (emphasis
added).
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depriving this court of jurisdiction to review the BIA’s treatment of such an
order), we have held that a petitioner can get around this bar by asking the IJ
to toll the statutory limitations period. 2 See Lugo-Resendez, 831 F.3d at 342-
43.
The last piece of the framework necessary to determine our
jurisdiction in this case involves the alien’s choice of which order to appeal.
“[T]he BIA’s denial of an appeal and its denial of a motion to reconsider are
two separate final orders, each of which require[s] [its] own petitions for
review.” Guevara v. Gonzales, 450 F.3d 173, 176 (5th Cir. 2006) (internal
quotation marks and citation omitted). A petition for review of an order
denying a motion for reconsideration does not automatically bring up for
review an underlying order denying a motion to reopen. See Kane v. Holder,
581 F.3d 231, 237 n.14 (5th Cir. 2009). An appeal from the BIA’s motion to
reopen does not necessarily allow us to review the underlying order. But a
petitioner can secure review of the underlying order by urging, in her motion
for reconsideration, the issue over which judicial review is sought. See Stone
v. I.N.S., 514 U.S. 386, 405-06 (1995).
C.
To recap this case’s facts: On April 10, 2019, the Immigration Judge
(“IJ”) denied Carranza-Albayero’s motion to reopen in absentia removal
proceedings. The IJ refused to exercise its statutory and regulatory reopening
power. Carranza-Albayero appealed that decision to the BIA, but she
challenged only the IJ’s refusal to sua sponte reopen the proceedings. The
2
A motion for regulatory reopening must show “exceptional circumstances.” 8
C.F.R. § 10032.23(a). Alternatively, to be entitled to equitable tolling, the petitioner must
establish “two elements: ‘(1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way and prevented timely filing.’” Lugo-
Resendez, 831 F.3d at 344 (quoting Menominee Indian Tribe of Wis. v. United States, 577 U.S.
250, 255 (2016)).
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BIA then summarily affirmed IJ’s decision. Carranza-Albayero did not appeal
that summary denial to this court, instead she sought reconsideration with
the BIA, again challenging only the IJ’s refusal to exercise sua sponte
reopening authority. The BIA then denied reconsideration of its summary
decision.
Carranza-Albayero purports to appeal only the BIA’s decision
denying her reconsideration motion, but she avers that we also have
jurisdiction to review the original BIA decision summarily affirming the IJ’s
refusal to exercise regulatory or statutory reopening authority. That is often
the case. See Mata, 576 U.S. at 147-48. But not here. First, Carranza-
Albayero’s motion to reopen was indisputably late and she did not seek
tolling of the limitations period. The motion thus is deemed a motion for sua
sponte reopening which we lack jurisdiction to review.
The second reason we lack jurisdiction pertains to the notices of
appeal. The IJ refused to exercise either its statutory or its regulatory
reopening power. Thus, in theory we have jurisdiction to review the statutory
reopening decision. However, in both of her appeals to the BIA, Carranza-
Albayero asserted only one “[i]ssue [p]resented”: whether the IJ erred in his
exercise of “sua sponte authority.” And Carranza-Albayero’s petition for
review in this court challenges only the BIA’s denial of the motion to
reconsider. So Carranza-Albayero did not preserve for our review the
underlying IJ’s decision pertaining to its statutory reopening power. See
Guevara, 450 F.3d at 176. Instead, she only preserved the regulatory
reopening issue. And under our caselaw, which the Supreme Court has not
disturbed, we lack jurisdiction over that issue. Lugo-Resendez, 831 F.3d at 343.
The parties rely on Nguhlefeh Njilefac v. Garland, 992 F.3d 362 (5th
Cir. 2021), to establish jurisdiction. In that case, we exercised jurisdiction
under somewhat similar circumstances. Id. at 365. There, an IJ had denied
asylum to the petitioner, who appealed to the BIA. Petitioner’s counsel,
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however, never filed any briefing before the BIA. Id. at 364. The BIA sent the
petitioner’s counsel a briefing schedule to the address on file, but counsel
said he never received the schedule. Id. After the BIA upheld the IJ’s
decision, resolving the petitioner’s arguments raised in the notice of appeal,
the petitioner sought reconsideration on due process grounds. Id. The BIA
denied the motion for reconsideration, and the petitioner sought review in
this court. We said that we had “jurisdiction to review the Board’s decision
denying [the petitioner’s] motion for reconsideration under 8 U.S.C.
§ 1252(a).” Id. at 365. But because the petitioner’s motion for
reconsideration was timely filed, it could properly be treated as a motion for
statutory reopening. See id. Nguhlefeh Njilefac does not disturb the framework
described above.
In sum, we lack jurisdiction over this petition for review of a BIA
decision pertaining only to regulatory reopening power. We therefore
DISMISS the petition.
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