IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-60749

Summary Calendar

CARLOS MOLINA,

Petitioner

v.

JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A073 358 311

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Carlos Molina, a native and citizen of Mexico and formerly a lawful 

permanent resident of the United States, petitions this court for review of a 

decision of the Board of Immigration Appeals (“BIA”) denying his motion to 

remand and dismissing his appeal from the immigration judge’s (“IJ’s”) denial 

of his motion to reopen his removal proceedings. The BIA dismissed Molina’s 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

May 15, 2017

Lyle W. Cayce

Clerk

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No. 15-60749

2

appeal after determining that the departure bar in 8 C.F.R. § 1003.23(b)(1)

eliminated the IJ’s jurisdiction to consider Molina’s motion.

As an initial matter, Molina argues that he was denied adequate 

appellate review because both the BIA and the IJ failed to address adequately 

whether he filed a timely motion to reopen under 8 C.F.R. § 1229a(c)(7). He 

contends that his motion was timely filed because the 90-day period for filing 

a motion to reopen should have been reset when the conviction supporting his 

removal was vacated. In the alternative, he argues that the filing period 

should have been equitably tolled because he sought reopening as soon as that 

conviction was vacated. Molina additionally asserts that the BIA engaged in 

impermissible fact-finding in determining that the departure bar precluded 

consideration of his motion to reopen. We lack jurisdiction to review those 

arguments because Molina failed to exhaust his claims by raising them 

properly before the BIA. See Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004).

Next, Molina argues that the BIA erred by dismissing his appeal based 

on the departure bar. He complains that the issue of the departure bar was 

not properly before the BIA. He also contends that the departure bar should 

not have been applied in his case. His arguments lack merit. See 8 C.F.R. 

§ 1003.1(d)(3)(ii); Ovalles v. Holder, 577 F.3d 288, 295–97 (5th Cir. 2009). 

Molina concedes that his argument challenging application of the departure 

bar in cases involving a sua sponte motion to reopen on the ground that it 

violates his right under Section 1229a(c)(7) to file one motion to reopen is 

foreclosed by Ovalles. See Garcia-Carias v. Holder, 697 F.3d 257, 265 (5th Cir. 

2012). His assertion that the departure bar should be inapplicable when an 

alien has been removed as the result of a defective proceeding based on a 

subsequently vacated conviction is foreclosed by Ovalles, 577 F.3d at 297, and 

Quezada v. INS, 898 F.2d 474, 476 (5th Cir. 1990). 

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In his reply brief, Molina argues that the departure bar prevents an alien 

from making a motion to reopen, but does not constrain the authority of the IJ 

to sua sponte reopen the proceedings. He also contends that this court should 

reconsider its departure bar jurisprudence because it is based on the no-longerapplicable principle that an alien’s removal renders his appeal moot. Because 

Molina raised those arguments for the first time in his reply brief, we will not 

consider them. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).

Molina also argues that his motion to reopen should be granted because 

he is not removable. Because the BIA did not address Molina’s merits-based 

challenges to the IJ’s denial of his motion for sua sponte reopening or dismiss 

his appeal on those grounds, we will not consider Molina’s arguments.

Finally, Molina argues that the BIA erred by treating his motion to 

remand as a motion to reopen and denying that motion as time and number

barred. Molina has not shown error in this regard. See Wang v. Ashcroft, 260 

F.3d 448, 451–52 (5th Cir. 2001).

For the foregoing reasons, Molina’s petition for review is DISMISSED in 

part for lack of jurisdiction and DENIED in part.

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