IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-60676

Summary Calendar

JOSE ABEL SARABIA-LOPEZ, also known as Abel Sarabia-Lopez,

Petitioner

v.

LORETTA LYNCH, U.S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A090 867 864

Before REAVLEY, SMITH, and HAYNES, Circuit Judges.

PER CURIAM:*

Jose Abel Sarabia-Lopez, a native and citizen of Mexico, petitions this 

court for review of the Board of Immigration Appeals’ (BIA) decision affirming 

the Immigration Judge’s (IJ) denial of his motion to subpoena the victim of his 

deportable offense and the IJ’s discretionary denial of his application for a 

waiver of inadmissibility under former § 212(c) of the Immigration and 

Nationality Act (INA), 8 U.S.C. § 1182(c). Sarabia-Lopez contends that the IJ’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

December 10, 2015

Lyle W. Cayce

Clerk

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denial of his motion to subpoena the victim violated his statutory and due 

process right to present evidence, thereby depriving him of a full and fair 

hearing on his application for § 212(c) relief. He also contends that the BIA’s 

failure to consider and evaluate his arguments regarding the IJ’s refusal to 

subpoena the victim violated his due process right to a full and meaningful 

review of his claims. 

We must examine our own jurisdiction, whether or not raised by the 

parties. Cadle Co. v. Pratt, 524 F.3d 580, 584 (5th Cir. 2008). Judicial review 

of a final removal order is available only where the alien has exhausted all 

administrative remedies of right. 8 U.S.C. § 1252(d)(1). An alien’s failure to 

exhaust an issue before the BIA is a jurisdictional bar to this court’s 

consideration of the issue. Wang v. Ashcroft, 260 F.3d 448, 452 (5th Cir. 2001). 

“An alien fails to exhaust his administrative remedies with respect to an issue 

when the issue is not raised in the first instance before the BIA — either on 

direct appeal or in a motion to reopen.” Id. at 452-53. “This exhaustion 

requirement applies to all issues for which an administrative remedy is 

available to a petitioner as of right.” Omari v. Holder, 562 F.3d 314, 318 (5th 

Cir. 2009) (internal quotation marks and citation omitted). “A remedy is 

available as of right if (1) the petitioner could have argued the claim before the 

BIA, and (2) the BIA has adequate mechanisms to address and remedy such a 

claim.” Id. at 318-19. An exception to the exhaustion requirement exists for 

claims of due process violations, except for procedural errors that are 

correctable by the BIA. Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004).

Although Sarabia-Lopez complained to the BIA that the IJ should have 

issued the subpoena in question, he did not contend that the IJ’s failure to do 

so violated his due process rights. This alleged error falls within the type of 

procedural errors that would have been correctable by the BIA. See Roy, 389

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F.3d at 136-37; Matter of Vergara, 15 I. & N. Dec. 388 (BIA 1975) (reviewing 

and rejecting alien’s claim that the IJ’s refusal to issue a subpoena violated her 

due process rights). Thus, we lack jurisdiction to review this issue. See 8 U.S.C. 

§ 1252(d)(1); Omari, 562 F.3d at 318-21; Wang, 260 F.3d at 452-53. Similarly, 

he failed to raise his due process challenge to the BIA’s order in a motion to 

reconsider or reopen; accordingly, we lack jurisdiction to consider the only 

other issue raised. Id.

Accordingly, Sarabia-Lopez’s petition for review is DISMISSED for lack 

of jurisdiction.

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