### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 13

- 60869

JUAN RAMON TARANGO, also known as Ramon Tarango,

Petitioner

v. ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent

Petition for Review of an Order of the Board of Immigration Appeals BIA No. A090 398 253

Before KING, JOLLY, and COSTA, Circuit Judges

. PER CURIAM: * Juan Ramon Tarango petitions this court for review of a decision of th e Board of Immigration Appeals denying his request to reopen his case sua sponte

. For the reasons that follow, we dismiss the petition for lack of jurisdiction.

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be publish ed and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED December 5, 2014 Lyle W. Cayce Clerk Case: 13-60869 Document: 00512859986 Page: 1 Date Filed: 12/05/2014No. 13

- 60869 I. Factual and Procedural Background Juan Ramon Tarango, a citizen of Mexico, entered the United States in 1974 without inspect ion. He adjusted his status to that of a lawful permanent resident in 1988. In May 1996, Tarango was convicted, pursuant to a guilty plea, of unlawfully, intentionally, and knowingly possessing a controlled substance (less than one gram of cocaine) in Ha rris County, Texas. The court entered a deferred adjudication of guilt and placed him on two years’ probation. In November 1996, the former Immigration and Naturalization Service (“INS”) issued an Order to Show Cause and Notice of Hearing charging that
Ta rango was deportable based on his controlled substances conviction. Tarango contended that his deferred adjudication did not amount to a “conviction” for purposes of deportation. On May 27, 1997, the Immigration Judge (“IJ”) agreed and terminated Tarango ’s deportati on proceedings. On appeal, the Board of Immigration Appeals (“BIA”) vacated the decision and remanded the proceedings based on recent authority holding that a deferred adjudication under the Texas Code of Criminal Procedure constituted a “conv iction” for immigration purposes. On remand, the IJ determined that Tarango was subject to deportation and that there was “no relief or discretionary consideration potentially available to” Tarango. 1 The IJ ordered Tarango deported to Mexico. Tarango a gain appealed to the BIA, which

— after temporarily administratively closing the case

— affirmed the IJ’s decision without opinion. Tarango petitioned this court for review; we dismissed the

1 The IJ did not conclude, as Tarango contends, that Tarango was not entitled to relief under former Section 212(c) of the Immigration and Nationality Act (“INA”) , 8 U.S.C. § 1182(c), because he committed an aggravated felony. Rather, the IJ determined that Tarango could not have been placed in removal proceedings

— as opposed to deportation proceedings

— because the Order to Show Cause was issued in November 1996 and removal proceedings could not be instituted until April 1, 1997. 2 Case: 13-60869 Document: 00512859986 Page: 2 Date Filed: 12/05/2014No. 13

- 60869 petition for lack of jurisdiction on July 22, 2002 . Tarango was dep orted to Mexico in March 2009. On F ebruary 21, 2012, Tarango submitted to the BIA a motion to reopen his case , arguing that he should have been placed in removal proceedings (rather than deportation proceedings) and that he was eligible for cancellation of removal. The BIA denied the motion , determining that the “departure rule”

— which prohibits a party from filing a motion subsequent to his removal from the United State s, 8 C.F.R. § 1003.2(d)

— applied to bar Tarango’s motion. The BIA alternatively fo und th at there was no merit to Tarango’s argument that he should have bee n placed in removal proceedings, and that because he

was placed in deportation proceedings, he was ineligible for cancellation of removal. Subsequently, the Fifth Circuit held that the dep arture rule is not a valid basis for denying a statutorily authorized motion to reopen or reconsider. See Garcia

- Carias v. Holder , 697 F.3d 257, 265 (5th Cir. 2012) ; Lari v. Holder , 697 F.3d 273, 278 (5th Cir. 2012). On June 18, 2013, Tarango filed a seco nd motion to reopen, requesting that the BIA reopen his proceedings sua sponte pursuant to 8 C.F.R. § 1003.2(a), so that he could apply for a waiver of deportation under former Section 212(c) of the INA. On November 20, 2013, the BIA denied the motion,
d eeming it “untimely and number

- barred,” and concluding that “such a motion does not fall within any exception to the time and numerical limits for a motion to reopen.” Moreover, the BIA declined to exercise its authority to reopen the proceedings sua spon te , as Tarango did not contest that his cocaine possession conviction supports the charge of deportability. T he BIA also concluded that Tarango was statutorily ineligible for relief under Section 212(c) because he is

no longer lawfully admitted for perman ent residence in the United States. Tarango timely petitioned this court for review of that order.

3 Case: 13-60869 Document: 00512859986 Page: 3 Date Filed: 12/05/2014No. 13

- 60869 II. Discussion Tarango raises various arguments relating to the merits of his deportation and the propriety of the decisions below

— none of which we have the power to reach. The applicable regulations make clear that a party may file only one motion to reopen before the BIA, and that the motion must be filed
wi thin ninety days of the final administrative decision rendered in the proceeding sought to be reopened

. See 8 C.F.R. § 1003.2(c). Accordingly , Tarango’s second motion to reopen

— filed years after his deportation

— is both time and number

- barred. Tarango th erefore must rely on the BIA’s power to

sua sponte reopen proceedings. See id. § 1003.2(a). 2 Furthermore, Tarango’s petition for review challenges only the BIA’s November 20, 2013 denial of t his second motion to re open. 3 Tarango argues that “the [BIA] abused its discretion in not reopening [the proceedings] sua sponte .” However, w e have repeatedly held that this court lacks jurisdiction over challenges to the BIA’s failure to
exercise its sua sponte authority to reopen, as “[t]he authority to sua spont e reopen deportation proceedings is entirely discretionary.” Lopez

- Dubon v. Holder , 609 F.3d 642, 647 (5th Cir. 2010); Ramos

- Bonilla v. Mukasey , 543 F.3d 216, 220 (5th Cir. 2008) (“[T]his court lacks jurisdiction to review the BIA’ s denials of Ramos’ s mot ions to reopen.”); see also Enriquez

- Alvarado v. Ashcroft ,

2 Tarango has conceded that he “is not contending before this Court that his [second] motion to reopen was timely.”
3 Tarango makes clear that he “is not seeking review of [the BIA’s August 2012] decision” denyi ng his first motion to reopen. Indeed, Tarango could have challenge d that decision only by filing a separate petition for review of that order

. See 8 U.S.C. § 1252(b)(6 ); Kane v. Holder , 581 F.3d 231, 238 n.14 (5th Cir. 2009) (“[T] he statutory text of 8 U.S.C. § 1252(b)(6) . . . contemplates the filing of separate petitions fo r review following both the BIA’ s initial order and the resolution of any subsequent motion to reconsider or reopen. ”); Cardona

Morales v. Holder , 576 F. App’x 374, 374 (5th Cir. 2014) (unpublished) (“Although Cardona

– Morales raises several challenges to the determinations made by the IJ and the BIA with respect to the IJ’s denial of her motion to reopen and the BIA’s denial of her two subsequent motions f or reconsideration, the only petition for review before this court challenges the BIA’s May 2013 denial of Cardona

– Morales’ s first motion for reconsideration. Accordingly, this court’s jurisdiction is limited to those arguments relating to the BIA’s May 2 013 decision.”). 4 Case: 13-60869 Document: 00512859986 Page: 4 Date Filed: 12/05/2014No. 13

- 60869 371 F.3d 246, 250 (5th Cir. 2004) (“[A] reviewing court has no legal standard against which to judge an IJ’s decision not to invoke its sua sponte authority.” )

. Although we have never recog nized an exception to this rule, Tarango argues that we have jurisdiction to hear a challenge to the BIA ’ s refusal to sua sponte re open proceedings where the refusal constitutes a “gross miscarriage of justice.” However, Tarango offers no support for that propo sition, citing only cases holding that a gross miscarriage of justice is a prerequisite to a collateral
attack on a removal order. See Ramirez

- Molina v. Ziglar , 436 F.3d 508, 514 (5th Cir. 2006); Lara v. Trominski , 216 F.3d 487, 492

– 94 (5th Cir. 2000). B ut
t hese cases do not involve challenges to the BIA’s failure to reopen proceedings sua sponte , and there is no authority suggesting any “gross miscarriage of justice” exception to our lack of jurisdiction over such orders. Indeed, i n an unpublished opini on, we determined that we lacked jurisdiction even where the petitioner “suggest[ed] that the BIA’ s failure to exercise its sua sponte authority to reopen her removal proceedings has resulted in a gross miscarriage of justice. ” Cardona

- Morales v. Holder , 576 F. App’ x 374 , 374 (5th Cir. 2014) (unpublished). Similarly, although Tarango has not raised a due process claim related to the BIA’s refusal to exercise its sua sponte authority , 4 we have rejected such claims because “there is no liberty interest at s take in a motion to reopen.” Altamirano

- Lopez v. Gonzales , 435 F.3d 547, 550 (5th Cir. 2006); see also Khan v. Holder , 384 F. App’x 355, 356 (5th Cir. 2010) (unpublished) ( “ The BIA may reopen a matter sua sponte at any time but the decision to do so is entirely within its discretion. . . . To the extent that Khan argues that the denial of the motion to reopen violates his due process rights,

4 Tarango briefly notes, without further discussion or argument, that “his previous removal [was] unlawful as his due process was abridged ” and that “a motion to reopen is a critical due process protection.” This is insufficient to raise a due process claim , as “ [i]t is not enough to merely mention or allude to a legal theory ” to properly raise it. United States v. Scroggins , 599 F.3d 433, 446 (5th Ci r. 2010) (internal quotation marks omitted). 5 Case: 13-60869 Document: 00512859986 Page: 5 Date Filed: 12/05/2014No. 13

- 60869 he has no constitutionally protected interest in discretionary relief.”)

. Thus, we lack jurisdiction over Tarango’s petition.
III. Conclusion For the foregoing reasons, the petition for review is DISMISSED for lack of jurisdiction.

6 Case: 13-60869 Document: 00512859986 Page: 6 Date Filed: 12/05/2014