IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-60010

Summary Calendar

MARCO ANTONIO MERINO-FERNANDEZ,

Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A035 398 351

Before JONES, Chief Judge, and PRADO and ELROD, Circuit Judges.

PER CURIAM:*

Marco Antonio Merino-Fernandez, a native and citizen of Chile who was

removed from the United States, challenges the determination of the Board of

Immigration Appeals (BIA) that neither the BIA nor the immigration judge (IJ)

had jurisdiction to consider his motion to reopen his removal proceedings. The

BIA relied on the post-departure bar in 8 C.F.R. §§ 1003.2(a) and 1003.23(b)(1),

which provide that a motion to reopen “shall not be made” by or on behalf of a

person who is the subject of removal proceedings “subsequent to his or her

United States Court of Appeals

Fifth Circuit

F I L E D

March 22, 2012

Lyle W. Cayce

Clerk

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.

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No. 11-60010

departure from the United States.” § 1003.2(d) (pertaining to motions before the

BIA); § 1003.23(b)(1) (pertaining to motions before an IJ).

Merino-Fernandez contends that the post-departure bar conflicts with

8 U.S.C. § 1229a(c)(7), but we rejected a similar challenge to the validity of the

post-departure bar in Ovalles v. Holder, 577 F.3d 288, 292-96 (5th Cir. 2009). 

Because Merino-Fernandez had previously filed two motions to reopen, the

instant motion to reopen was number barred—just as Ovalles’s motion was time

barred—by the very statute that he invokes against the regulation prohibiting

post-departure motions. See id. at 296. Merino-Fernandez relies on the

Supreme Court’s recent decision in Union Pacific Railroad Co. v. Brotherhood

of Locomotive Engineers & Trainmen General Committee of Adjustment, Central

Region, 130 S. Ct. 584, 596-99 (2010), and contends that the BIA’s application

of the post-departure bar as a jurisdictional rule improperly narrowed the

statutory authority of the BIA and the IJ to grant motions to reopen. However,

there was no such error in the application of the bar in Merino-Fernandez’s case

because he had no right under the statute to file a number-barred motion to

reopen in the first place. See Ovalles, 577 F.3d at 296.

To the extent that he challenges the refusal of the BIA to exercise sua

sponte authority to reopen his case, we lack jurisdiction to review his claim. See

Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249-50 & n.3 (5th Cir. 2004). 

Merino-Fernandez contends that the BIA erred by refusing in light of § 1003.2(d)

to consider whether to exercise its sua sponte authority to reopen his case, but

we rejected the same argument in Ovalles. Ovalles, 577 F.3d at 296-97. In

addition, he challenges the BIA’s application of the post-departure bar by

challenging the validity of his underlying removal order, but we lack jurisdiction

to review this claim because he did not separately petition for review of the

underlying order. See Stone v. INS, 514 U.S. 386, 394-95 (1995). MerinoFernandez also argues that the BIA violated his due process rights by enforcing

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the post-departure bar in his case, but we rejected that argument in Ovalles. 

Ovalles, 577 F.3d at 298-99.

PETITION DISMISSED IN PART AND DENIED IN PART. 

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