### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 16

- 60381

MIGUEL MENDIAS

- MENDOZA, Also Known as Javier Arturo Segovia

- Mendias,
Petitioner ,

versus JEFFERSON B. SESSIONS , III , U.S. Attorney General. Respondent

.

Petition for Review of a n Order of the Board of Immigration Appeals

Before SMITH, BARKSDALE, and HIGGINSON, Circuit Judges

. JERRY E. SMITH, Circuit Judge: Miguel Mendias

- Mendoza was found deportable by an immigration judge (“IJ”) i n 1991

. In 2014―t wenty

- three years after the IJ’s final deportation order

― Mendias

- Mendoza submitted to the IJ a motion to reopen his deporta

tion. The IJ denied that motion, the Board of Immigration Appeals (“BIA”) affirmed , and this petition for review followed

. We deny the petition

. United States Court of Appeals Fifth Circuit 

### FILED December 12, 2017 Lyle W. Cayce Clerk Case: 16-60381 Document: 00514270489 Page: 1 Date Filed: 12/12/2017No. 1 6

- 6 0 38 1

2 I. Mendias

- Mendoza, a native and citizen of Mexico, entered the United States without inspection on October 4, 1991. On the same day, the Immigra

tion and Naturalization Service (“INS”) served him with an order to show cause, charging him with deportability under § 241(a)(1)(B) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1251(a)(1)(B) (1991). The reason was that Mendias

- Mendoza had e ntered the United States without inspection. Mendias

- Mendoza obtained an attorney, who filed a notice of appearance. On October 16, 1991, the IJ held a deportation hearing . In connection with the hearing, Mendias

- Mendoza entered into a written stipulatio n with the INS stating that he “underst[oo]d [] the nature and purpose of the deportation hearing and waive[d] any further explanation thereof.” The stipulation also provided that h e “admit[ted] all of the allegations of fact and conced[ed] the charge of d eportability.” The section of the stipulation allowing Mendias

Mendoza time to seek relief from deportation was crossed out. The stipulation further noted that h e “agree[d] to accept the decision of the [IJ] ” and “waive [ d ] appeal.” It was signed by Mend ias

- Mendoza’s attorney, an INS representative, and the IJ. Based on the stipulation, the IJ determined that Mendias

- Mendoza was deportable as charged and ordered him deported to Mexico.
In Nove mber 2014, Mendias

- Mendoza , through new counsel, moved to reopen in the immigration court. He asserted that he had lied to immigration officials in 1991 and had obtained lawful permanent resident ( “ LPR ” ) status i n October 1989. The only evidence in support of his motion was his a ffidavit , in which he claimed that he gave the Border Patrol agents a fake name in 1991, falsely informing them that he was undocumented. He also averred that he returned to the United States on the same day he was deported by using his LPR card and that he renewed his LPR card on two other occasions. Although Case: 16-60381 Document: 00514270489 Page: 2 Date Filed: 12/12/2017No. 1 6

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3 not reflected in his affidavit, Mendias

- Mendoza asserted in his motion that his wife had been granted LPR status i n 2009 based on his applica tion

. He also maintained that immigration authorities c ommitted several procedural errors during his 1991 deportation proceedings. For example, he asserted that they did not process his fingerprints to verify his identity

. The IJ initially indicated that the motion to reopen was not untimely , because the ti me and numerical limitations on such motions do not apply to proceedings begun before 1992 under the former INA § 242(b), 8 U.S.C. § 1252(b). Then, the IJ co ncluded that Mendias

- Mendoza had “provided no evidence to support his allegation” regarding his LP R status “other than his affid avit.” But , the IJ explained , Mendias

- Mendoza had not demonstrated that his alleged LPR status was unavailable at the time of his deportation proceed

ings. Moreover , the IJ determined that Mendias

- Mendoza failed to establish prima facie eligibility for adjustment of status or to submit a required appli ca tion to adjust his status. Finally, the IJ declined to exercise his sua sponte dis cretion to reopen the deportation proceedings. T he BIA di smissed Mendias

- Mendoza’s appeal, agreeing that he had pro vided insufficient evidence that he was an LPR at the time of his 1991 depor

tation proceedings. The BIA also con cluded that Mendias

- Mendoza had failed to give material evidence that was previous ly unavailable, to submit an appli

cation for relief, or to establish prima facie eligibility for the relief sought. T he BIA similarly declined to exercise its sua sponte authority to reopen.
II.

“ Motions to reopen deportation proceedings are disfavore d, ” and the party seeking relief has a heavy burden. Altamirano

- Lopez v. Gonzales , 435 F.3d 547, 549

− 50 (5th Cir. 2006) (internal quotation marks omitted) . We review “the denial of a motion to reopen under a highly deferential abuse

- of

- Case: 16-60381 Document: 00514270489 Page: 3 Date Filed: 12/12/2017No. 1 6

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4 discretion standar d.” B arrios

- Cant a rero v. Holder , 772 F.3d 1019, 1021 (5th Cir. 2014) (internal quotation marks omit ted). The BIA “ abuses its discretion ” when it “issues a decision that is capricious, irrational, utterly without foun

da tion in the evidence, based on legally erron eous interpretations of statutes or regulations, or based on unexplained departures from regulations or estab

lished policies.” Id. We review the BIA’s conclusions of law de novo and its findings of fact for substantial evidence. Id. Und er “substantial evidence” review, “this court may not overturn the BIA’s factual findings unless the evidence compels a con

trary conclusion.” Gomez

- Palacios v. Holder , 560 F.3d 354, 358 (5th Cir. 2009). Finally, we review only the order of the BIA “ unle ss the IJ’s decision has some impact on the BIA’s decision,” Mikhael v. INS , 115 F.3d 299, 302 (5th Cir. 1997), in which case we review the IJ’s decision as well, Wang v. Holder , 569 F.3d 531, 536 (5th Cir. 2009). Because the BIA’s decision was largely ba sed on the IJ’s findings and conclusion, we also consider the IJ’s decision where appropriate

. III. Mendias

- Mendoza spends much of his brief attacking the IJ’s 1991 deportation order. We lack jurisdiction to consider those contentions or to eval

uate th e validity of th at order. Any petition to review an IJ’s de portation order

“ must be filed not later than 30 days after the date of the final order of removal.” 8 U.S.C. § 1252(b)(1). Th at time limit is “man da tory and jurisdic

tional.” Stone v. INS , 514 U.S. 386, 405 (199 5 ); Guirguis v. INS , 993 F.2 d 508, 509 (5th Cir. 1993). Accordingly, we lack jurisdiction to consider directly th e 1991 deportation order or Mendias

- Mendoza’s arguments regard ing it. Moreover, to the extent that Mendias

- Mendoza cha llenges the BIA’s discretionary decision not to invoke its sua sponte authority, we lack Case: 16-60381 Document: 00514270489 Page: 4 Date Filed: 12/12/2017No. 1 6

- 6 0 38 1

5 jurisdiction. See Enriquez

- Alvarado v. Ashcroft , 371 F.3d 246, 248

– 50 (5th Cir. 2004). “[A] reviewing court has no legal standard against which to judge an IJ’s deci sion not to invoke its sua sponte authority.” Id. at 250.
IV

. Re ga rding Mendias

- Mendoza’s claim that the BIA improperly denied his motion to reopen , 1 t he BIA may deny a motion to reopen on at least three independent grounds: (1) “ [T] he movant has not est ablished a prima facie case for the underlying substantive relief sought,” (2) “the movant has not intro

duced previously unavailable, material evidence,” and (3) the movant is not entitled to a discretionary grant of relief where d iscretionary relief is s ought. 2 As stated above, the BIA and the IJ concluded that Mendias

- Mendoza both failed to estab lish a prima facie case for relief and had not introduced previ

ously u navailable, material evidence. Either ground would be sufficient.
I t is evident that Mendias

- Mendoza has not provided any material, pre

vi o usly unavailable evidence to justify re opening. See Abudu , 485 U.S. at 104

– 05; 8 C.F.R. § 1003.23(b)(3). The main thrust of Mendias

- Mendoza’s motion is that he was an LPR at the time of his 1991 deportation hearing and that his deportation was therefore invalid. As the IJ and BIA explained, however, there is no reason th at information was unavail able at the 1991 deportation hearing.

1 As a preliminary matter, 8 C.F.R. § 1003.23(b)(1) provides that a “motion to reopen must be filed within 90 days of the date of entry of a final administrative order of removal, deportation, or exclusion, or on or before September 30, 1996, whichever is later.” Although Mendias

- Mendoza’s motion clearly e xceeded th at limit, the IJ did not rely on it as a reason for denial. Instead , the IJ construed In re Cruz

- Garcia , 22 I. & N. Dec. 1155, 1156

– 59, as re mov ing Mendias

- Mendoza’s case from these time limitations. But Cruz

- Garcia did not so hold. Rather, it held only that motions to reopen proceedings conducted in absentia were not sub ject to time limitations. Id. at 1158

– 59. Accordingly, Cruz

- Garcia would not dictate the application of § 1003.23(b)(1) to Mendias

- Mendoza’s case.

2 INS v. Abudu , 485 U.S . 94, 104

– 05 (1988); see also Man z ano - Garcia v. Gon zales , 413 F.3d 462, 46 9 (5th Cir. 2005); 8 C.F.R. § 1003.23(b)(3). Case: 16-60381 Document: 00514270489 Page: 5 Date Filed: 12/12/2017No. 1 6

- 6 0 38 1

6 Mendias

- Mendoza’s only averment that would not have been available in 1991 is that he twice renewed his LPR status since 1991. But th at evidence is ultimately immaterial

— the possibility that Mendias

- Mendoza’s LPR status was renewed just buttresses his assertion that he had LPR status in 199 1. The relevant facts are still that h e admitted he was deportable in 1991, but now claims that he had LPR status since 1989. Accordingly, the BIA did not abuse its discretion in finding that Mendias

- Mendoza had not provided any material, previously unav ailable evidence to justify granting a motion to reopen. 3
V

. Mendias

- Mendoza contends that the BIA denied him due process in con sidering the motion to reopen. But the decision whether to grant a motion to reopen is entirely within the discretion of the B IA and the IJ

— “[e]ven if a mov ing party has established a prima facie case for relief, an IJ can still deny a motion to reopen.” See Altamirano

- Lopez , 435 F.3d at 550; 8 C.F.R. § 1003.23(b)(1)(iv). T he Fifth Amendment right to due pro cess is not violat ed unless there is a deprivation of a li berty interest. Assaad v. Ashcroft , 378 F.3d 471, 475 (5th Cir. 2004). Moreover, “the failure to receive relief that is purely discretionary in nature does not amount to a deprivation of a liberty interest.” Id. Thus, Mendias

- Mendoza did not have a protected lib erty interest in his motion to reopen, and his due

- process claim fails

. See id. ; Altamirano

- Lopez , 435 F.3d at 550.
T he petition for review is DENIED

.

3 In his motion, Mendias

- Mendoza also asserts that his wife was granted LPR status based on his LPR status

. That statement , however, is not found in his affidavit , and state

ments made by an attorney in a motion are not evidence. See INS v. Phinpathya , 464 U.S. 183, 188

– 89 n.6 (1984). Case: 16-60381 Document: 00514270489 Page: 6 Date Filed: 12/12/2017