IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-60268

Summary Calendar

GADDIEL QUIROZ RETA,

Petitioner

v.

LORETTA LYNCH., U.S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A097 683 432

Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Gaddiel Quiroz Reta, a native and citizen of Mexico, was admitted to the 

United States in 1996 as a nonimmigrant visitor, with authorization to remain 

in the United States for no longer than a year. He was charged in 2009 with 

being removable as an alien who remained in the United States for a time 

longer than permitted. The Immigration Judge (IJ) ruled he was removable 

as charged. Reta, through counsel, filed an application for cancellation of 

 

* 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

October 17, 2016

Lyle W. Cayce

Clerk

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No. 15-60268

2

removal based on extreme hardship to his children. At the removal hearing, 

the parties informed the IJ that Reta intended to withdraw with prejudice his 

application, conditioned upon his receipt of voluntary departure and a bond. 

The IJ entered an order granting voluntary departure, noting Reta waived his 

right to appeal.

Reta did not voluntarily depart; instead, he appealed the order to the 

Board of Immigration Appeals (BIA), asserting he received ineffective 

assistance of counsel (IAC). On 5 January 2012, the BIA dismissed the appeal 

because Reta failed to comply with the requirements of Matter of Lozada, 19 I 

& N Dec. 637 (BIA 1988), for raising an IAC claim. As such, the BIA 

determined he had not established his waiver of the right to appeal was 

invalid. In May 2012, the BIA denied Reta’s motion to reconsider its dismissal 

of his appeal. 

Thereafter, that July, Reta filed a motion to reopen in the immigration 

court. He maintained he received IAC in the removal proceeding because 

counsel failed to allege in the cancellation-of-removal application that Reta’s 

parents would also suffer extreme hardship if he were removed. The IJ denied 

the motion, concluding: it was not filed within 90 days of the voluntary 

departure order and was therefore untimely; it lacked merit; and Reta had not 

shown exceptional circumstances warranting sua sponte reopening. On 18 

March 2015, the BIA dismissed the appeal from the IJ’s denial of the motion 

to reopen. 

A petition for review must be filed no later than 30 days after the date of 

a final order of removal. 8 U.S.C. § 1252(b)(1). The period for filing a petition 

is mandatory and jurisdictional and is not subject to tolling by a motion for 

reconsideration. Stone v. INS, 514 U.S. 386, 405 (1995).

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Reta filed this petition on 16 April 2015, within 30 days of the BIA’s 

dismissing his appeal from the denial of the motion to reopen, but more than 

30 days after the BIA’s previous decisions. Accordingly, our court has 

jurisdiction to review only the BIA’s 18 March 2015 decision dismissing Reta’s 

appeal from the denial of the motion to reopen. See § 1252(b)(1). Therefore, to 

the extent his petition challenges aspects of earlier BIA rulings, our court lacks 

jurisdiction to review these contentions. 

Although this petition for review is timely as to the BIA’s 18 March 2015 

decision dismissing the appeal from the denial of the motion to reopen as 

untimely, Reta failed to challenge before the BIA the IJ’s timeliness 

determination. Rather, he reasserted the merits of his IAC claim. We lack 

jurisdiction to consider contentions that were not exhausted before the BIA. 

See 8 U.S.C. § 1252(d)(1); see also Claudio v. Holder, 601 F.3d 316, 318 (5th 

Cir. 2010). We likewise lack jurisdiction to review the IJ’s discretion in 

refusing to sua sponte reopen the proceedings. See Enriquez-Alvarado v. 

Ashcroft, 371 F.3d 246, 248–49 (5th Cir. 2004); see also Mata v. Lynch, 135 S. 

Ct. 2150, 2155 (2015).

DISMISSED.

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