United States Court of Appeals

for the Fifth Circuit

No. 18-60865

Jose Ernesto Escobar, also known as Jose Escobar, also known as

Jose Escobar Hernandez, 

Petitioner,

versus

William P. Barr, U.S. Attorney General, 

Respondent.

Petition for Review of the Order of the

Board of Immigration Appeals

BIA No. A095 030 659

Before Higginbotham, Jones, and Higginson, Circuit Judges.

Per Curiam:*

Petitioner Jose Ernesto Escobar, a native and citizen of El Salvador,

entered the United States without authorization in 2001. He was ordered 

removed in absentia in 2006 after his temporary protected status (“TPS”)

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 6, 2020

Lyle W. Cayce

Clerk

Case: 18-60865 Document: 00515591488 Page: 1 Date Filed: 10/06/2020
No. 18-60865

2

expired.

1 He has since filed two unsuccessful motions to reopen his removal 

proceedings. In 2017, an immigration judge denied his second motion to 

reopen, as well as his subsequent motion for reconsideration. The Board of 

Immigration Appeals (“BIA”) dismissed Escobar’s appeal, and he filed this 

petition for review in December 2018. In September 2019, after the parties 

had submitted their briefs, Escobar filed an advisory notifying the Court that 

he had been granted lawful permanent resident status.

If, during the pendency of litigation, the complaining party receives 

the relief he originally sought to obtain in court, the action becomes moot and 

must be dismissed for lack of subject-matter jurisdiction.2 In this case, 

Escobar has received even more relief than he requested: His lawful 

permanent resident status is a greater benefit than the TPS he sought to 

obtain through reopening. 

Nevertheless, Escobar asserts that his case falls within the limited 

exception to mootness for claims that are “capable of repetition yet evading 

review.”3 “The capable-of-repetition doctrine applies only in exceptional 

situations where the following two circumstances are simultaneously 

1 Temporary protected status is available to certain foreign nationals present in the 

United States whose home country is designated by the Secretary of Homeland Security as 

unsafe due to conflict, disaster, or other “extraordinary and temporary conditions . . . that 

prevent . . . nationals of the state from returning to the state in safety . . . .” 8 U.S.C. 

§ 1254a(b)(1)(C). A country’s nationals are eligible for TPS only as long as that country’s 

official designation lasts. Id. § 1254a(b)(2)(B). In addition, each individual TPS recipient 

must re-register periodically. In this case, Escobar received TPS in 2001 and renewed his 

TPS in 2003. However, his next renewal application was denied, leaving him without legal 

status. 

2 See Envt’l Conservation Org. v. City of Dallas, 529 F.3d 519, 531 (5th Cir. 2008); 

Am. Med. Ass’n v. Bowen, 857 F.2d 267, 270 (5th Cir. 1988). 

3 See Bayou Liberty Ass’n, Inc. v. U.S. Army Corps of Eng’rs, 217 F.3d 393, 398 (5th 

Cir. 2000).

Case: 18-60865 Document: 00515591488 Page: 2 Date Filed: 10/06/2020
No. 18-60865

3

present: (1) the challenged action is in its duration too short to be fully 

litigated prior to cessation or expiration, and (2) there is a reasonable 

expectation that the same complaining party will be subject to the same action 

again.”4

Escobar, who bears the burden of proof,5 does not address the first 

prong of the exception. As to the second, he offers no evidence for the 

contention that he could “be subjected to the same, or substantially similar 

treatment by the [BIA] in the future.” It is hard to imagine how he could be, 

given that he now has permanent legal status. Instead, he speculates that a 

hypothetical “noncitizen similarly situated” might in the future be subjected 

to the same alleged errors by the BIA. However, the capable-of-repetition 

doctrine only applies where “the same legal issue . . . is likely to recur in 

future controversies between the same parties.”6 We “cannot adjudicate the 

rights of [those] who are not parties before” us.7

In sum, Escobar’s receipt of lawful permanent resident status 

rendered the relief he sought from the BIA redundant and mooted his appeal. 

We therefore dismiss Escobar’s petition for review for lack of subject-matter 

jurisdiction.

4 Id. (internal quotation marks and alterations omitted) (quoting Spencer v. Kemna, 

523 U.S. 1, 17 (1998)).

5 See Lopez v. City of Houston, 617 F.3d 336, 340 (5th Cir. 2010).

6 Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1976 (2016) (emphasis 

added). 

7 Tardan v. Cal. Oil Co., 323 F.2d 717, 722 (5th Cir. 1963). 

Case: 18-60865 Document: 00515591488 Page: 3 Date Filed: 10/06/2020