IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-60673

Summary Calendar

JULIO MUJICA,

Petitioner

v.

LORETTA LYNCH, U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A090 373 986

Before REAVLEY, OWEN, and ELROD, Circuit Judges.

PER CURIAM:*

Julio Mujica, a native and citizen of Mexico, seeks review of an order of 

the Board of Immigration Appeals (BIA) upholding the decision of the 

Immigration Judge (IJ) denying his application for adjustment of status under 

the Immigration and Nationality Act. Mujica now argues that “an applicant 

for adjustment of status need only prove a procedural regularity in his entry,” 

and that he “meets the definition for admission, not because he was afforded 

 

* 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

November 9, 2016

Lyle W. Cayce

Clerk

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No. 15-60673

2

[temporary legal residence], but because he left the United States and was 

inspected” upon his return. Mujica does not reurge the arguments that he 

made before the IJ and BIA. The Government moves to dismiss Mujica’s 

petition for lack of jurisdiction on the ground that Mujica failed to present to 

the BIA the arguments he now urges in this brief. The Government argues 

that the issues are, therefore, unexhausted and unreviewable. Alternatively, 

the Government moves for summary denial on the ground that Mujica fails to 

address either of the BIA’s reasons for upholding the IJ’s decision. The 

Government asserts that Mujica’s failure to brief the BIA’s reasons waives any 

challenge to the dismissal of his appeal. Mujica opposes the motions.

We may exercise jurisdiction over Mujica’s petition for review only if he 

has “exhausted all administrative remedies available to [him] as of right” on 

these issues. 8 U.S.C. § 1252(d)(1). “A remedy is available as of right if (1) the 

petitioner could have argued the claim before the BIA, and (2) the BIA has 

adequate mechanisms to address and remedy such a claim.” Omari v. Holder, 

562 F.3d 314, 318-19 (5th Cir. 2009). That “the BIA had sufficient notice ofand opportunities to address-the issues” presented is not sufficient to give this 

court jurisdiction. Id. at 321. An alien meets the exhaustion requirement only 

if he has “explicitly” raised an issue before the BIA on direct appeal, a motion 

to reopen, or a motion for reconsideration. Id. at 320-21 (discussing a motion 

for reconsideration); see also Toledo-Hernandez v. Mukasey, 521 F.3d 332, 334 

(5th Cir. 2008) (addressing direct appeal or motion to reopen); Heaven v. 

Gonzales, 473 F.3d 167, 177 (5th Cir. 2006) (same). This requirement ensures 

that the BIA is provided with adequate notice and opportunity to address those 

issues it should address, including its own legal errors, using its expertise in 

immigration matters. Omari, 562 F.3d at 321-22. 

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Mujica did not present the BIA with the argument he advances in this

court. Thus, we lack jurisdiction to entertain his petition for review.

Mujica has also filed a motion requesting that this court remand his 

petition for review to the BIA in light of Gomez v. Lynch, 831 F.3d 652 (5th Cir. 

2016) (holding that the petitioner’s entry into the United States following 

inspection while holding temporary resident status constituted a procedurally 

regular admission under 8 U.S.C. § 1255(a)). Mujica could have presented his 

argument regarding lawful entrance while holding temporary resident status 

to the IJ and introduced some evidence to support it. He also could have argued 

it to the BIA as there was some authority supporting such an argument. See 

In re Castro Valdez, 2012 WL 3911586, at *2-3 (BIA Aug. 13, 2012). He did 

neither. Notably, this court cited Castro Valdez in its opinion in Gomez and 

specifically distinguished the arguments set forth in that case from the 

arguments that Mujica urged in his appeal to the BIA. Gomez, 2016 WL 

4169123, at *8 n.16 (citing Matter of Mujica, 2015 WL 5173569, at *1 (BIA Aug. 

28, 2015)). Because this issue is unexhausted, we lack jurisdiction to entertain 

it. Moreover, the BIA would have no authority to grant relief under Gomez

given the absence of evidence to support Mujica’s argument regarding his 

procedurally regular entry.

Accordingly, the Government’s motion to dismiss is GRANTED, and the 

petition for review is DISMISSED for lack of jurisdiction. The Government’s 

motion for summary denial is DENIED as moot. Mujica’s motion to remand is 

DENIED.

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