# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 19

- 60924 Summary Calendar

**Quang Thai Ming Tran,**

Petitioner **,**

versus

**Merrick Garland,** U.S. Attorney General **,**
Respondent

**.**

Petition for Review of an Order of the Board of Immigration Appeals BIA No. A046 587 506

Before **Clement, Higginson,** and **Engelhardt,** Circuit Judges

**. Per Curiam**  **:** *
Quang Thai Ming Tran, a native and citizen of Vietnam, petitions for
review of an order by the Board of Immigration Appeals (BIA) dismissing his appeal from the immigration judge’s (IJ) denial of his motion to reopen the proceedings that resulted in his removal under Immigration and Nationality

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED March 31, 2021
Lyle W. Cayce Clerk Case: 19-60924 Document: 00515803725 Page: 1 Date Filed: 03/31/2021No. 19

- 60924

2 Act § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), because he had been

conv icted of an aggravated felony and under § 237(a)(2)(B)(1), § 1227(a)(2)(B)(i), because he had been convicted of a n offense relating to a
controlled substance . In its order, the BIA adopted the IJ’s determination that Tran’s motion to reopen was not timely filed for purposes of 8 U.S.C. § 1229a(c )(7)(C)(i) . It hel d that Tran had waived any challenge to the IJ’s determinations that he was not entitled to equitable tolling and had not established exceptional circumstances warranting sua sponte reopening . It
also agreed with the IJ’s alternative holding that Tran’s due process rights

were not violated during his removal proceedings

. We have jurisdiction to review the den ial of Tran’s motion to reopen. Mata v. Lynch , 576 U.S. 143, 147

- 48 (2015) ; 8 U.S.C. § 1252(b)(6). Although

our review is limit ed because Tran was removable based on his co nviction of an aggravated felony , we retain jurisdiction to consider “constitutional claims or questions of law

. ” § 1252(a)(2)(C), ( D). We review the denial of a motion to reopen removal proceedings under “a h ighly deferential abuse

of

- discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). Because the BIA adopted and relied on the IJ’s decision in addition to providing its own re asons , we will consider both decisions. Zhu v. Gonzales , 493 F.3d 588, 593 (5th Cir. 2007).
In his petition for review, Tran argues that his due process rights were
violated because his notice to appear failed to allege facts establishing that he
was removable b ased on his controlled substance conviction

. He contends
that it did not identify the substance underlying his conviction to show that it was a controlled substance as defined in 21 U.S.C. § 802 . T ran argues that
his proceedings should be reopened in light of that due process violation because his resulting order of removal was a gross miscarriage of justice.

Tran does not contend that the IJ and BIA erred in determining that his motion to reopen was not timely filed and he was not entitled to equitable tolling. He also does not contend that the IJ and BIA erred in rejecting his Case: 19-60924 Document: 00515803725 Page: 2 Date Filed: 03/31/2021No. 19

- 60924

3 challenge to the immigration court’s jurisdiction under Pereira v. Sessions , 138 S. Ct. 2105 (2018), or in determining that his due process rights were not violated by the incorrect date of conviction included on his notice to appear.
H e has abandoned any c laims he might have raised regarding those decisions. See Soadjede v. Ashcroft , 324 F.3d 830, 833 (5th Cir. 2003).
We also reject Tran’s claims that his order of removal was a “gross miscarriage of justice

. ” A lthough t his court has recognized a “gross miscarriage of justice” exception in cases where a statutory bar otherwise limits review of an underlying removal order, it has declined to extend that exception to overcome an untimely motion to reope n. See Gonzalez

- Cantu v.
Sessions , 866 F.3d 302, 306 (5th Cir. 2017) . Further, it is unclear whether Tran attempts to invoke this as an exceptio n to the time bar, but even if he did so, we would lack jurisdiction to consider the issue as he did not raise it
before the BIA

. S ee Roy v. Ashcroft , 389 F.3d 132, 137 (5th Cir. 2004).
For the foregoing reasons, Tran’s petition for review is **DENIED**

. Case: 19-60924 Document: 00515803725 Page: 3 Date Filed: 03/31/2021