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 Salga do-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 appe llate 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- 2 - 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 ente red the United States in 1998 without inspection. In February 2 010, an immigration judge in Oklahoma City, Oklahoma found Petitioner removable as an alien present in the United States wit hout 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 hard ship” as required under 8 U.S.C. § 1229b(b)(1)(D). The immigr ation judge did, however, gr ant 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 an d a motion for stay of removal in the Court of Appeals for the Ninth Circuit. Se e Salgado-Toribio v. Ho lder, 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 w ith the court of appeals for the judicial circuit in which the immigra tion judge completed the proceedings.”). The Ninth Circuit entered a temporary stay of removal and inexplicably transferred the- 3 - petition and temporary stay to the Fifth Circuit, which was also an im proper 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 f ile within 30 days a motion to continue the stay th at complied with our local ru les regarding a stay pending appeal. See 10th Cir. R. 8.1. We ultimat ely denied Petitioner’s motion for stay of removal and dismissed his petition for la ck of jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(i), which denies us jurisdiction ov er 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, whic h we also denied. A month later, in February 2011, Petitioner filed a motion to reopen with the BIA, arguing that new evidence of increased viol ence and corruption in Mexico warranted cancellation of removal. The BIA denied th e motion as untimely a nd held that Petitioner failed to show an “excepti onal situation” warranting sua sponte reopening. R. at 44–45. Petitioner then filed a second pe tition for review in the Ninth Circuit. Salgado-Toribio v. Holder, 11-71299 (9th Cir. order filed June 28, 2011). Resp ondent moved to dismiss the petition, or in the alternative, to transfer ve nue 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 Petiti oner to submit a renewed stay motion that complied with Tenth Circuit Ru le 8.1. We then denied Petitioner’s motion for stay of removal and dismissed his petiti on for lack of jurisdiction, concluding thatunder BelayGebru v. INS, 327 F. 3d 998 (10th Cir. 2003), we could no t review the BIA’s refusal to reopen removal proceedings sua sponte . Salgado-Toribio v. Holder, 11-9537 (10th Cir.- 4 - order filed Dec. 12, 2011). Petitioner again filed a petition for panel rehear ing which we again denied. Undaunted, Petitioner filed a second motion to reopen with the BIA. The BIA denied the motion as time a nd number barred and determined the motion did not present an exceptional s ituation 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, withhol ding of removal, and protection under the United Nations Convention Agai nst 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 Resp ondent has moved to dismi ss 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 citizen s) would face if taken to Mexico. He also makes a passing due proce ss argument, asserting that “denial of the right to a full and fair hearing may violate th e Constitutional guarantee of ‘Due Process,’” Petitioner’s Br. at 3, and thathis children’s due process rights sup port reopening his removal proceedings, id. at 6.
II. We start with Petitioner’s in forma pauperis application. Federa l law allows us to authorize an appeal “without prepayment of fees or security therefor, by a person who- 5 - submits an affidavit that includes a statemen t of all assets such prisoner possesses [and] that the person is unable to pay such fees or gi ve 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 ma licious.” § 1915(e)(2)(B)(i). Petitioner here is not a “prisoner” as defined in this secti on, but we have held that “[s]ection 1915(a) applies to all persons applying for IFP status, and not just to prisoner s.” Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2 005). Likewise, we apply section 1915(e)’s “frivolous or malicious” standard to both prisoner and non-pris oner 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.” Neitz ke v. Williams, 490 U.S. 319, 327 (1989). In his brief, Petitioner only challenges the BIA’s holding that Petitione r 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 9 98, 1001 (10th Cir. 2003), we held that we have no jurisdiction to review th e BIA’s decision not to reopen removal proceedings sua sponte

. See also Tamenut v. Mukasey, 521 F.3d 1000, 1004 (8th Cir. 2008) (not ing it was joining ten other circuits in holding such BIA decisions are unre viewable). So this petition for review is one we could never grant under any circumstan ces. 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.- 6 - 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 ata due process argument vestus with jurisdiction. We do have jurisdiction to revi ew “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 proceeding s, a petitioner has no liberty or property interest in obta ining purely discretionary re lief.” Id. (quoting Dave v. Ashcroft, 363 F.3d 649, 653 (7th Cir. 2004)). “Becau se aliens do not have a constitutional right to enter or remain in th e United States, the only protections afforded are the minimal procedural due process right s for an ‘opportunity to be heard at a meaningful time and in a mean ingful manner.’” Id. (quoti ng 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 safe guards. Thus, he has not asserted a nonfrivolous constitutional claim sufficie nt to give us jurisdiction. We have no difficulty concluding this petition is frivolous ba sed 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 outs ide 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) (199 4 ed.) But in 1996, Congress passed the Illegal Immigration Refo rm and Immigrant Responsibility Act of- 7 - 1996 (IIRIRA), which altered th e 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 pr ovision: “Service of the petition on the officer or em ployee does not stay the rem oval of an alien pending the court’s decision on the petition, un less 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 exerci se of [the court’s] discretion.” Nken v. Holder, 556 U.S. 418, 434 (2009) . In deciding whether to gran t 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) wh ether the applicant will be i rreparably injured absent a stay; (3) whether issuance of th e 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 st ay of removal should not be granted as a matter of course, but only wh en the alien has satisfied his burden. The alien must also do more than allege that removal constitute s irreparable harm be cause “the burden of removal alone cannot constitute the requisite irre parable injury.” Id. at 435. The Court has also noted that “[t]here is always a pub lic interest in prompt execution of removal orders . . . .” Id. at 436. This “interes t in prompt removal ma y be heightened by the circumstances as well—if, for example, the alie n . . . 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 re view in the Ninth Circuit,- 8 - the only circuit in th e country that grants a temporary stay automatically upon the filing of a motion for stay of removal. 1 See Ninth Circuit Genera l Order 6.4(c) (“Upon the filing of a motion or request for stay of rem oval or deportation, the order of removal or deportation is temporarily stayed until further order of the cour t.”). 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 th e 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 f iled petitions to this circuit. “A stay of removal is an extraordinary remedy that shoul d not be granted in the ordi nary case, much less awarded as of right.” Nken, 556 U.S. at 437 (K ennedy, J., concurring ). When a petition for review and a motion for stay ar e filed in the wrong circuit, that circuit may examine the Nken factors and deny the stay motion befo re transferring the ca se. See MaldonadoPadilla v. Holder, 651 F.3d 32 5 (2d Cir. 2011) (Jacobs, Chie f Judge, in chambers). The Ninth Circuit may well have want ed 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 proce dural order does not give petitioning aliens the full advantages of the pre-IIRIRA automatic stay, which took effect au tomatically when the petition for review was filed an d 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 last s until the Ninth Circu it has an opportunity to consider the stay motion.- 9 - combined with its General Orde r 6.4c, creates an incentive for forum shopping. Aliens such as Petitioner will learn they can signi ficantly delay remova l by improperly filing petitions in the Ninth Circuit an d 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 re duce the incentive for a liens to engage in these dilatory tactics. 2
III. After our discussion of Petitioner’s in forma pauperis application, the proper resolution of Responden t’s motion to dismiss follows as clearly as night from day. Petitioner has, for the third time, failed to ra ise any issue that we have jurisdiction to review. So we grant Respondent’s motion to dismiss. Petitioner is no longer eligible for vol untary removal becaus e he has filed two motions to reopen before the BI A 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 pe riod for voluntary depa rture, the grant of voluntary departure terminates automatically and the alternate order of removal takes

2 One might question whether the Ninth Circuit has jurisd iction to deny the stay in such a case because it is not the proper ve nue for the petition. Whether 8 U.S.C. § 1252(b)(2) affects our subject matter jurisdic tion 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 juri sdiction as denying a stay.- 10 - effect immediately. 3 8 C.F.R. § 1240.26(b)(1)(ii) a nd 1240.26(i). Be cause 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 dismi ss 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 re moval, 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.