Case: 12-60019 Document: 00511984472 Page: 1 Date Filed: 09/12/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 12, 2012
No. 12-60019
Summary Calendar Lyle W. Cayce
Clerk
LORENZO HERNANDEZ-FLORES; SILVIA GONZALEZ-PENA; ANDRES
HERNANDEZ-GONZALEZ; JOSE HERNANDEZ-GONZALEZ
Petitioners
v.
ERIC HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA Nos. A094 928 937
A094 928 938
A094 928 939
A094 928 940
Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
The Department of Homeland Security charged Lorenzo Hernandez-
Flores, his wife Silvia Gonzalez-Pena, and their children Andres Hernandez-
Gonzalez and Jose Hernandez-Gonzalez (Petitioners), natives and citizens of
Mexico, as removable for being arriving aliens who applied for admission
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-60019 Document: 00511984472 Page: 2 Date Filed: 09/12/2012
No. 12-60019
without having or presenting immigrant visas or other valid entry documents.
Petitioners applied for asylum, withholding of removal, and deferral of removal
under the Convention Against Torture (CAT). The immigration judge (IJ)
denied Petitioners’ applications, and Petitioners appealed.
The Board of Immigration Appeals (BIA) dismissed the appeal, and denied
Petitioners’ motion to reconsider. They seek review of the BIA’s denial of that
motion. The denial is reviewed for abuse of discretion. E.g., Zhao v. Gonzales,
404 F.3d 295, 303 (5th Cir. 2005).
Petitioners contend the BIA erred in concluding they failed to demonstrate
entitlement to asylum, withholding of removal, or protection under CAT. These
contentions, however, concern the bases for the BIA’s dismissal of their appeal.
Restated, this petition does not present for review that underlying BIA order
affirming the IJ’s order and dismissing the appeal. The failure to petition for
review of the order dismissing their appeal results in our lacking jurisdiction to
review the order. E.g., Kane v. Holder, 581 F.3d 231, 237-38 (5th Cir. 2009) (no
jurisdiction to review the BIA’s denial of motion to reconsider claim for asylum
when issue not raised in petition for review).
Petitioners’ opening brief here contains no analysis regarding the
challenged denial of their motion to reconsider. It does not address whether the
BIA abused its discretion in doing so and does not expressly identify anything
in that decision that is capricious, irrational, arbitrary, racially invidious, or
completely lacking in evidentiary basis. E.g., Zhao, 404 F.3d at 303-04 (listing
guidepost factors for abuse-of-discretion review of BIA orders). Instead, in
response to the Government’s asserting lack of jurisdiction because of this
failure, Petitioners raise these claims for the first time in their reply brief.
Generally, “[t]his [c]ourt will not consider [] claim[s] raised for the first time in
a reply brief”. Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). We decline to
do so in this instance.
DISMISSED.
2