PUBLISH 

UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

___________________________________ 

LUCIO SALGADO-TORIBIO, 

Petitioner, 

v. No. 12-9578 

ERIC H. HOLDER, JR., Attorney 

General of the United States, 

Respondent. 

___________________________________ 

ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF 

IMMIGRATION APPEALS 

____________________________________ 

Lucio Salgado-Toribio, pro se. 

Carmel A. Morgan, United States Department of Justice, Civil Division, Washington, 

D.C., for Respondent. 

____________________________________ 

Before O’BRIEN, McKAY, and BALDOCK, Circuit Judges.*

____________________________________ 

BALDOCK, Circuit Judge. 

____________________________________ 

Petitioner Lucio Salgado-Toribio, acting pro se, seeks review of a Board of 

Immigration Appeals (BIA) order denying his motion to reopen removal proceedings. 

 *

 After examining the briefs and the appellate record, this panel has determined 

unanimously that oral argument would not materially assist the determination of this 

appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 23, 2013

Elisabeth A. Shumaker 

Clerk of Court
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But this is not his first lap around the track. Petitioner has been using the federal courts’ 

procedures to put off removal for more than three years since an immigration judge found 

him removable. This is now his third time seeking our review of an administrative 

decision over which we have no jurisdiction. Enough is enough. We deny Petitioner’s 

motion to proceed in forma pauperis, dismiss the petition for review, and recommend 

that the Department of Homeland Security enforce the order of removal immediately. 

I. 

Petitioner is a citizen of Mexico who entered the United States in 1998 without 

inspection. In February 2010, an immigration judge in Oklahoma City, Oklahoma found 

Petitioner removable as an alien present in the United States without being admitted or 

paroled pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). The immigration judge denied 

Petitioner’s application for cancellation of removal because he failed to show 

“exceptional and extremely unusual hardship” as required under 8 U.S.C. 

§ 1229b(b)(1)(D). The immigration judge did, however, grant Petitioner’s request for 

voluntary departure. Petitioner appealed to the Board of Immigration Appeals (BIA), 

which dismissed the appeal, agreeing with the immigration judge. R. at 90–91. 

Petitioner then filed a petition for review and a motion for stay of removal in the 

Court of Appeals for the Ninth Circuit. See Salgado-Toribio v. Holder, 10-72367 (9th 

Cir. order filed Aug. 27, 2010). Venue, however, was only proper in this circuit. 8 

U.S.C. § 1252(b)(2) (“The petition for review shall be filed with the court of appeals for 

the judicial circuit in which the immigration judge completed the proceedings.”). The 

Ninth Circuit entered a temporary stay of removal and inexplicably transferred the 
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petition and temporary stay to the Fifth Circuit, which was also an improper venue. The 

Fifth Circuit transferred the petition to this court. See Salgado-Toribio v. Holder, 10-

60717 (5th Cir. order filed Aug. 31, 2010). We ordered Petitioner to file within 30 days a 

motion to continue the stay that complied with our local rules regarding a stay pending 

appeal. See 10th Cir. R. 8.1. We ultimately denied Petitioner’s motion for stay of 

removal and dismissed his petition for lack of jurisdiction under 8 U.S.C. § 

1252(a)(2)(B)(i), which denies us jurisdiction over discretionary decisions by the BIA. 

Salgado-Toribio v. Holder, 10-9557 (10th Cir. order filed Dec. 15, 2010). He then filed a 

petition for rehearing, which we also denied. 

A month later, in February 2011, Petitioner filed a motion to reopen with the BIA, 

arguing that new evidence of increased violence and corruption in Mexico warranted 

cancellation of removal. The BIA denied the motion as untimely and held that Petitioner 

failed to show an “exceptional situation” warranting sua sponte reopening. R. at 44–45. 

Petitioner then filed a second petition for review in the Ninth Circuit. Salgado-Toribio v. 

Holder, 11-71299 (9th Cir. order filed June 28, 2011). Respondent moved to dismiss the 

petition, or in the alternative, to transfer venue to the Tenth Circuit. The Ninth Circuit 

transferred the matter to this circuit with instruction that the temporary stay of removal 

remain in effect. We again ordered Petitioner to submit a renewed stay motion that 

complied with Tenth Circuit Rule 8.1. We then denied Petitioner’s motion for stay of 

removal and dismissed his petition for lack of jurisdiction, concluding that under BelayGebru v. INS, 327 F.3d 998 (10th Cir. 2003), we could not review the BIA’s refusal to 

reopen removal proceedings sua sponte. Salgado-Toribio v. Holder, 11-9537 (10th Cir. 
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order filed Dec. 12, 2011). Petitioner again filed a petition for panel rehearing which we 

again denied. 

Undaunted, Petitioner filed a second motion to reopen with the BIA. The BIA 

denied the motion as time and number barred and determined the motion did not present 

an exceptional situation warranting sua sponte reopening. R. at 2. The BIA also denied 

his motion “to the extent that [Petitioner’s] motion to reopen can be construed as a 

motion to reopen to apply for asylum, withholding of removal, and protection under the 

United Nations Convention Against Torture.” Id. For yet a third time, Petitioner 

improperly filed a petition for review in the Ninth Circuit, which entered a temporary 

stay and again transferred the petition and stay to this court. Salgado-Toribio v. Holder, 

12-72441 (9th Cir. order filed Sep. 5, 2012). We denied Petitioner’s motion to continue 

or reinstate the stay of removal. (Order filed Nov. 28, 2012). Petitioner has applied for 

in forma pauperis status and Respondent has moved to dismiss the petition for lack of 

jurisdiction. In his brief, Petitioner points to the dangerous situation in Mexico and the 

threat that his three children (who are United States citizens) would face if taken to 

Mexico. He also makes a passing due process argument, asserting that “denial of the 

right to a full and fair hearing may violate the Constitutional guarantee of ‘Due Process,’” 

Petitioner’s Br. at 3, and that his children’s due process rights support reopening his 

removal proceedings, id. at 6. 

II. 

We start with Petitioner’s in forma pauperis application. Federal law allows us to 

authorize an appeal “without prepayment of fees or security therefor, by a person who 
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submits an affidavit that includes a statement of all assets such prisoner possesses [and] 

that the person is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a). 

But section 1915(e) requires us to dismiss an in forma pauperis appeal at any time if we 

determine the “appeal . . . is frivolous or malicious.” § 1915(e)(2)(B)(i). Petitioner here 

is not a “prisoner” as defined in this section, but we have held that “[s]ection 1915(a) 

applies to all persons applying for IFP status, and not just to prisoners.” Lister v. Dep’t 

of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005). Likewise, we apply section 1915(e)’s 

“frivolous or malicious” standard to both prisoner and non-prisoner litigation. See 

Merryfield v. Jordan, 584 F.3d 923, 926 (10th Cir. 2009). 

Applying section 1915(e)’s standard, we cannot grant Petitioner leave to proceed 

in forma pauperis. An appeal is frivolous under this section if it is “based on an 

indisputably meritless legal theory.” Neitzke v. Williams, 490 U.S. 319, 327 (1989). In 

his brief, Petitioner only challenges the BIA’s holding that Petitioner had not presented 

an exceptional situation warranting sua sponte reopening of his removal proceedings. 

But our precedent clearly forecloses any review of that discretionary decision. In BelayGebru v. I.N.S., 327 F.3d 998, 1001 (10th Cir. 2003), we held that we have no 

jurisdiction to review the BIA’s decision not to reopen removal proceedings sua sponte. 

See also Tamenut v. Mukasey, 521 F.3d 1000, 1004 (8th Cir. 2008) (noting it was joining 

ten other circuits in holding such BIA decisions are unreviewable). So this petition for 

review is one we could never grant under any circumstances. Such a petition is 

“indisputably meritless.” Nor should this catch Petitioner by surprise. We cited BelayGebru when we denied his earlier petition from the BIA’s denial of sua sponte reopening. 
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See Salgado-Toribio v. Holder, 11-9537 (10th Cir. order filed Dec. 12, 2011). Yet 

Petitioner once again sought review of a nearly identical BIA decision. 

Nor does Petitioner’s attempt at a due process argument vest us with jurisdiction. 

We do have jurisdiction to review “constitutional claims or questions of law” raised in a 

petition for review. 8 U.S.C. § 1252(a)(2)(D). But we have held that we have no 

jurisdiction over due process claims of this variety. Arambula-Medina v. Holder, 572 

F.3d 824, 828 (10th Cir. 2009). “[I]n immigration proceedings, a petitioner has no liberty 

or property interest in obtaining purely discretionary relief.” Id. (quoting Dave v. 

Ashcroft, 363 F.3d 649, 653 (7th Cir. 2004)). “Because aliens do not have a 

constitutional right to enter or remain in the United States, the only protections afforded 

are the minimal procedural due process rights for an ‘opportunity to be heard at a 

meaningful time and in a meaningful manner.’” Id. (quoting de la Llana-Castellon v. 

I.N.S., 16 F.3d 1093, 1096 (10th Cir. 1994)). Petitioner has not argued that he was 

deprived of these minimal procedural safeguards. Thus, he has not asserted a nonfrivolous constitutional claim sufficient to give us jurisdiction. 

We have no difficulty concluding this petition is frivolous based on its arguments 

alone. But we also note that Petitioner has repeatedly taken advantage of the federal 

court of appeals’ stay procedures. Prior to 1996, courts of appeals could not review a 

deportation order if the alien was already outside the United States. 8 U.S.C. § 1105a(c) 

(1994 ed.). Accordingly, the immigration laws gave most aliens an automatic stay of 

deportation while judicial review was pending. § 1105a(a)(3) (1994 ed.) But in 1996, 

Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 
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1996 (IIRIRA), which altered the prior system in two ways. First, the IIRIRA allowed 

courts to consider a petition for review even once an alien had been removed. Second, 

the Act did away with the automatic stay and replaced it with this provision: “Service of 

the petition on the officer or employee does not stay the removal of an alien pending the 

court’s decision on the petition, unless the court orders otherwise.” 8 U.S.C. § 

1252(b)(3)(B). Thus, an alien may only obtain a stay of removal if he meets his burden of 

“showing that the circumstances justify an exercise of [the court’s] discretion.” Nken v. 

Holder, 556 U.S. 418, 434 (2009). In deciding whether to grant a stay of removal, a court 

must consider “(1) whether the stay applicant has made a strong showing that he is likely 

to succeed on the merits; (2) whether the applicant will be irreparably injured absent a 

stay; (3) whether issuance of the stay will substantially injure the other parties interested 

in the proceeding; and (4) where the public interest lies.” Id. 

The Supreme Court has made clear that a stay of removal should not be granted as 

a matter of course, but only when the alien has satisfied his burden. The alien must also 

do more than allege that removal constitutes irreparable harm because “the burden of 

removal alone cannot constitute the requisite irreparable injury.” Id. at 435. The Court 

has also noted that “[t]here is always a public interest in prompt execution of removal 

orders . . . .” Id. at 436. This “interest in prompt removal may be heightened by the 

circumstances as well—if, for example, the alien . . . has substantially prolonged his stay 

by abusing the processes provided to him.” Id. 

Abusing the processes provided is exactly what Petitioner has done here. Whether 

through inadvertence or design, he filed his first petition for review in the Ninth Circuit, 
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the only circuit in the country that grants a temporary stay automatically upon the filing 

of a motion for stay of removal.1

 See Ninth Circuit General Order 6.4(c) (“Upon the 

filing of a motion or request for stay of removal or deportation, the order of removal or 

deportation is temporarily stayed until further order of the court.”). Despite learning that 

the Ninth Circuit was an improper venue for his petition, he re-filed two more petitions 

for review in that circuit. In this case, the effect of the Ninth Circuit’s General Order 

6.4(c) was to buy Petitioner three extra periods of 25, 53, and 36 days, respectively. In 

addition to this delay, Petitioner benefited from the delay caused by transferring his 

petitions to this circuit. 

We would prefer the Ninth Circuit not automatically grant a stay of removal 

whenever it transfers improperly filed petitions to this circuit. “A stay of removal is an 

extraordinary remedy that should not be granted in the ordinary case, much less awarded 

as of right.” Nken, 556 U.S. at 437 (Kennedy, J., concurring). When a petition for 

review and a motion for stay are filed in the wrong circuit, that circuit may examine the 

Nken factors and deny the stay motion before transferring the case. See MaldonadoPadilla v. Holder, 651 F.3d 325 (2d Cir. 2011) (Jacobs, Chief Judge, in chambers). The 

Ninth Circuit may well have wanted to defer to our judgment regarding the propriety of a 

stay since venue was proper in this circuit. Unfortunately, that circuit’s deference to us, 

 1

 The Ninth Circuit’s procedural order does not give petitioning aliens the full 

advantages of the pre-IIRIRA automatic stay, which took effect automatically when the 

petition for review was filed and lasted until “determination of the petition by the court.” 

See 8 U.S.C. § 1105a(a)(3). But the Ninth Circuit’s practice gets petitioners halfway 

there. The temporary stay takes effect when the petition is filed as long as the petitioner 

simultaneously moves for a stay. And it lasts until the Ninth Circuit has an opportunity 

to consider the stay motion. 
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combined with its General Order 6.4c, creates an incentive for forum shopping. Aliens 

such as Petitioner will learn they can significantly delay removal by improperly filing 

petitions in the Ninth Circuit and benefiting from that circuit’s lenient stay rules. If the 

Ninth Circuit would consider the Nken standard before it transfer petitions and deny stays 

that do not satisfy that standard, it would reduce the incentive for aliens to engage in 

these dilatory tactics.2

III. 

After our discussion of Petitioner’s in forma pauperis application, the proper 

resolution of Respondent’s motion to dismiss follows as clearly as night from day. 

Petitioner has, for the third time, failed to raise any issue that we have jurisdiction to 

review. So we grant Respondent’s motion to dismiss. 

Petitioner is no longer eligible for voluntary removal because he has filed two 

motions to reopen before the BIA and three petitions for review in the court of appeals. 

The regulations provide that if an alien “files a post-decision motion to reopen or 

reconsider” or a petition for review during the period for voluntary departure, the grant of 

voluntary departure terminates automatically and the alternate order of removal takes 

 2

 One might question whether the Ninth Circuit has jurisdiction to deny the stay in 

such a case because it is not the proper venue for the petition. Whether 8 U.S.C. § 

1252(b)(2) affects our subject matter jurisdiction or is an ordinary venue provision is a 

question neither this circuit nor the Ninth Circuit has decided. See Trejo-Mejia v. 

Holder, 593 F.3d 913, 915 n.2 (9th Cir. 2010). But, either way, granting a stay is just as 

much an exercise of jurisdiction as denying a stay. 
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effect immediately.3

 8 C.F.R. § 1240.26(b)(1)(ii) and 1240.26(i). Because Petitioner is 

subject to removal and no stay is in effect, the Department of Homeland Security is at 

liberty to enforce its removal order. 

We GRANT Respondent’s motion to dismiss the petition for lack of jurisdiction 

and DENY Petitioner’s motion to proceed in forma pauperis. If Petitioner again files a 

frivolous petition for review we will not grant him in forma pauperis status, will not grant 

him 30 days to brief his motion to stay removal, and will likely impose sanctions under 

Federal Rule of Appellate Procedure 38. 

 3

 The BIA warned Petitioner of this consequence when it denied his appeal from 

the immigration judge’s decision. Administrative Record at 91.