* 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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-60574

MANUEL BERMUDES-CARDENAS,

also known as Manuel Cardenas-Bermudez,

Petitioner,

versus

ALBERTO R. GONZALES,

U.S. Attorney General,

Respondent.

--------------------

Petition for Review of an Order of

the Board of Immigration Appeals

(A35 472 968)

--------------------

Before SMITH, WIENER, and STEWART, Circuit Judges. 

PER CURIAM*:

Petitioner Manuel Bermudes-Cardenas (“Cardenas”) seeks review

of the Board of Immigration Appeals’s (“BIA”) order denying his May

6, 2004, motion to reopen his removal proceedings. As we lack

jurisdiction to consider one of the three claims on all of which

Cardenas must prevail to be entitled to relief, we deny review.

I. FACTS AND PROCEEDINGS

Cardenas is a native and citizen of Mexico who has lived in

the United States as a lawful permanent resident since 1978. In

United States Court of Appeals

Fifth Circuit

F I L E D

June 7, 2006

Charles R. Fulbruge III

Clerk
1 8 U.S.C. § 1227(a)(2)(A)(iii). Cardenas does not contest

that his felony —— a 1991 conviction in Texas state court for

“indecency with a child —— contact” —— qualifies as an aggravated

felony.

2 Although the substance of these provisions is not

important to the resolution of this case, §§ 212(c) and 245

provided an alien with avenues to seek, respectively, a waiver of

the alien’s inadmissibility and an adjustment of his immigration

status.

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2000, the former Immigration and Naturalization Service charged him

with being removable as an aggravated felon under

§ 237(a)(2)(A)(iii) of the Immigration and Nationality Act

(“INA”).1 Cardenas appeared before an Immigration Judge (“IJ”) in

December 2002, where he admitted his removability but asserted his

intention to apply for discretionary relief from removal under the

former §§ 212(c) and 245 of the INA.2 The IJ gave Cardenas until

March 28, 2003, to file his applications for §§ 212(c) and 245

relief with the court. The IJ informed Cardenas that if he failed

to file his applications by that date, “they will likely be

considered abandoned.”

That deadline came and went without Cardenas’s filing of his

applications for relief. True to his word, the IJ deemed

Cardenas’s unfiled applications to be abandoned and, on March 31,

2003, ordered Cardenas removed from the United States. Cardenas

appealed the IJ’s decision to the BIA, which affirmed the IJ and

issued a final order of removal on October 16, 2003.

Nothing transpired in this case until January 2004, when

Cardenas received a “bag and baggage” letter directing him to
3 See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).

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report for his removal. Surprised by the letter, Cardenas met with

his attorney, who, after telling Cardenas that he would take care

of any problems with his immigration status, filed on February 14,

2004, a motion to reopen Cardenas’s removal proceedings before the

IJ. The IJ denied the motion, reasoning that Cardenas had filed it

in the wrong forum —— the IJ, as opposed to the BIA. Cardenas’s

attorney then sought out the proper forum, and, on March 16, 2004,

purported to file with the BIA on Cardenas’s behalf a motion to

reopen Cardenas’s removal proceedings. The BIA, however, rejected

this motion to reopen as untimely. It reasoned that, as the motion

sought to reopen the BIA’s final removal order issued against

Cardenas on October 16, 2003, the INA’s and BIA’s 90-day time limit

within which to file a motion to reopen had already run.3

According to Cardenas, however, the March 16th motion to

reopen was filed without his authority. Cardenas insists that on

March 15, 2004 —— one day before the March 16th motion was filed ——

he had fired his attorney and hired new counsel to represent him in

these proceedings. Therefore, Cardenas contends, as of the filing

of the March 16th motion, his newly-fired attorney did not have

authority to act on his behalf.

Represented by new counsel, Cardenas returned to the BIA on

May 6, 2004, and filed with it the new motion to reopen that is at

issue in this appeal. In his May 6th motion, Cardenas argued that
4 With certain exceptions not relevant here, 8 U.S.C.

§ 1229a(c)(7)(A) and 8 C.F.R. § 1003.2(c)(2) permit an alien to

file just one motion to reopen his removal proceedings.

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the BIA should reopen his removal proceedings because his failure

timely to file his applications for §§ 212(c) and 245 relief from

removal was caused by the allegedly ineffective assistance of his

former counsel.

The BIA denied Cardenas’s May 6th motion to reopen on three

independent grounds. First, the BIA held that the motion was

untimely because it was filed more than 90 days after Cardenas’s

removal order became final on October 16, 2003. Second, the BIA

held that the motion was numerically barred by the one-motion-toreopen rule of 8 C.F.R. § 1003.2(c)(2) and 8 U.S.C.

§ 1229a(c)(7)(A).4 Finally, the BIA held that, even if it were to

overlook the procedural problems with the May 6th motion, that

motion would fail on its merits, because Cardenas had not

demonstrated that his former attorney’s allegedly ineffective

assistance caused him to miss the deadline for his §§ 212(c) and

245 applications.

Cardenas timely petitioned us for review of the BIA’s denial

of his May 6th motion to reopen.

II. ANALYSIS

The BIA denied Cardenas’s May 6th motion to reopen on three

adequate and independent grounds. For Cardenas to prevail in this

appeal, then, he must successfully attack each of these grounds; if
5 378 F.3d 471, 474 (5th Cir. 2004) (quoting Patel v. U.S.

Att’y Gen., 334 F.3d 1259, 1261 (11th Cir. 2003)) (emphasis

added).

6 Id.; see also id. at 474 (reasoning that “just as our

power to review a final [removal] order is circumscribed by [8

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one attack fails, Cardenas will not be entitled to relief. And

Cardenas makes a valiant effort, arguing that the BIA erred, first,

by concluding that the one-motion-to-reopen rule of 8 C.F.R.

§ 1003.2(c)(2) and 8 U.S.C. § 1229a(c)(7)(A) barred his May 6th

motion; second, by holding his May 6th motion to reopen to be

untimely; and, third, by denying his motion on its merits. Despite

his efforts, however, Cardenas cannot prevail: We lack

jurisdiction to consider one of Cardenas’s three claims, viz., that

the BIA erred in its application of the one-motion rule. We

therefore need not address Cardenas’s other two claims, and we deny

review.

As a general rule, we have jurisdiction to consider a petition

for review of the BIA’s denial of a motion to reopen a final order

of removal. But that jurisdiction is not explicitly granted by

Congress; rather, as we stated in our decision in Assaad v.

Ashcroft, it is derived from and “‘[i]mplicit in’” Congress’s

express grant of jurisdiction to consider petitions for review of

removal orders themselves.5 In other words, the scope of our

jurisdiction to review the BIA’s treatment of a motion to reopen a

final order of removal tracks our jurisdiction to review the final

order of removal itself. If one is curtailed, so is the other.6
U.S.C.] § 1252(a)(2)’s various jurisdiction-stripping provisions,

our ‘jurisdiction to entertain an attack on that order mounted

through filing . . . a motion to reopen’ is equally curtailed”)

(quoting Patel, 334 F.3d at 1262). In practical terms, the rule

of Assaad serves to prevent an end-run around the otherwise valid

restrictions Congress has placed on our authority to review

certain final orders of removal.

7 See, e.g., Bustamante-Barrera v. Gonzales, —— F.3d ——,

2006 WL 1030325, at *3 (5th Cir. Apr. 20, 2006).

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In this context we further note that, if Cardenas were

petitioning us for review of his actual removal order, we would

lack jurisdiction to consider any of his claims that were not legal

or constitutional in nature. This is so because Cardenas was

ordered removed based on his aggravated felony conviction; and,

under 8 U.S.C. § 1252(a)(2)(C) and (D), our jurisdiction to review

removal orders based on an alien’s commission of an aggravated

felony is limited to “constitutional claims or questions of law.”7

It follows under the rule of Assaad then that Congress’s

restriction of our jurisdiction to review an aggravated felon’s

removal order is extended one step further: It limits our

jurisdiction to consider a petition for review of an aggravated

felon’s motion to reopen his removal proceedings to the

constitutional and legal questions raised in that petition.

The jurisdictional question for Cardenas’s case, then, is

whether his claims present legal or constitutional questions. Only

to the extent that they do would we have jurisdiction over his

petition for review. And, even though two of Cardenas’s three

essential claims fall in the legal-or-constitutional category ——
8 Emphasis added.

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specifically, his equitable tolling and ineffective assistance of

counsel claims —— his claim that the BIA erred in its application

of the one-motion-to-reopen rule does not.

To challenge the BIA’s application of the one-motion rule to

his May 6th motion to reopen, Cardenas makes two arguments. First,

he contends that the May 6th motion was not in fact a new motion to

reopen; rather, it “was captioned as an amendment to the [March

16th] motion . . . , and is therefore not a second motion to

reopen, but instead an amendment of the first.”8 Alternatively,

Cardenas argues that the March 16th motion to reopen was “not a

bona fide motion” because his fired attorney “failed to inform,

much less procure consent from, Mr. Cardenas before filing the

motion.” Thus, Cardenas insists, the March 16th motion cannot be

attributed to him for purposes of the one-motion rule.

Both of these arguments rest on purely factual —— not legal or

constitutional —— foundations. The first argument presents the

factual question whether Cardenas intended the May 6th motion to

reopen to be an amendment to the March 16th motion. The second

argument presents the factual question whether Cardenas’s former

attorney actually had the authority to file the March 16th motion

to reopen on Cardenas’s behalf. Because neither of Cardenas’s

arguments turns on a legal or constitutional question, the

Assaad rule and 8 U.S.C. § 1252(a)(2)(C) work together to deprive
9 Cardenas contends that we have jurisdiction over his

entire petition for review because he “is not specifically

challenging the merits” of his removal order. (Emphasis added.) 

Stated otherwise, Cardenas believes that § 1252(a)(2)(C)’s

stripping of jurisdiction over removal orders issued against

aggravated felon aliens —— and, by extension, Assaad’s stripping

of jurisdiction over motions to reopen filed by such aliens ——

applies only if the alien’s petition challenges the BIA’s 

finding that the alien is in fact removable. As Cardenas’s

petition does not challenge the fact of his removability ——

indeed, he conceded it —— Cardenas claims that we retain

jurisdiction.

We disagree. Cardenas understates the extent to which

§ 1252(a)(2)(C) strips the federal courts of jurisdiction to

consider petitions for review filed by criminal aliens. Under

that provision, the federal courts simply do not

have jurisdiction over most of such an alien’s claims,

regardless of whether the alien is challenging the BIA’s finding

of removability. See Hernandez-Castillo v. Moore, 436 F.3d 516,

518 (5th Cir. 2005) (noting that § 1252(a)(2)(C) “preclude[s] all

judicial review . . . where a removal order is based on, inter

alia, the alien’s commission of an aggravated felony”).

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us of jurisdiction to consider Cardenas’s claim that the BIA erred

in its application of the one-motion rule.9

III. CONCLUSION

As Cardenas must succeed on all three of his claims to be

entitled to relief, and as we hold that we lack jurisdiction to

review one of those three claims, we need not reach Cardenas’s

other two claims. The petition for review is

DENIED.