### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH 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, challen g e s 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” b y o r on behalf of a person who is the subject of r emoval proceedings “subsequent to his or her U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D March 22 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 TH C IR

. R. 47.5 , the court hasd ete rm inedthat thisop inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 TH C IR

. R. 47.5 .4. Case: 11-60010 Document: 00511797078 Page: 1 Date Filed: 03/22/2012No. 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 c onflicts 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 (5 th C ir. 2009). Because Merino-Fernandez had previously fil ed 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 re c e nt d e cision in Union Pacific Railroad Co. v. Brotherhood of Locomotive Engineers & Trainmen General Committee ofAdjustment, Central Region , 130 S. Ct. 5 8 4 , 5 9 6

- 9 9 (2010), and contends that the BIA’s application of the post- d e p arture 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 righ t u n d e r 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 t o 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

a d dition, 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 revi e w thi s c laim 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

2 Case: 11-60010 Document: 00511797078 Page: 2 Date Filed: 03/22/2012No. 11-60010

the pos t

- d e p arture 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.

3 Case: 11-60010 Document: 00511797078 Page: 3 Date Filed: 03/22/2012