1 United States Court of Appeals

Fifth Circuit



## FILED

May 19, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 03-60294

__________________________

JOSE MARIO ENRIQUEZ-ALVARADO,

Petitioner,

versus

JOHN ASHCROFT, UNITED STATES ATTORNEY GENERAL,

Respondent.

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Petition for Review of an Order of the

Board of Immigration Appeals

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Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

This appeal co ncerns whether this Court has jurisdiction to consider whether the Board of

Immigration Appeals (“BIA”) should have compelled the Immigration Judge (“IJ”) to reopen a case

based on the IJ’s sua sponte authority. We hold that we lack jurisdiction.

I. FACTS AND PROCEEDINGS

Jose Mario Enrquez-Alvarado (“Alvarado”) is a native and citizen of El Salvador. He arrived

in the United States at Brownsville, Texas in October 1988. On January 5, 1989, the Immigration

and Naturalization Service (“INS”) issued an Order to Show Cause, charging that Alvarado entered2

the United States without inspection in violation of the Immigration and Nationality Act (“INA”) §

241(a)(2), 8 U.S.C. § 1251(a)(2). Alvarado filed an application for political asylum in June 1989, but

failed to appear at his immigration hearing. The IJ found him deportable i n absentia on November

1, 1989. Alvarado appealed the ruling in November 1989, and the BIA dismissed his appeal in April

1990.

One year after he appealed the IJ ruling, in November 1999, Alvarado petitioned t he IJ t o

reopen his case under the Nicaraguan and Central American Relief Act of 1997 (“NACARA”). The

Government did not join in the petition. On August 11, 2000, the IJ denied Alvarado’s motion to

reopen as untimely. Alvarado appealed this ruling to the BIA. The BIA dismissed the petitioner’s

appeal. Alvarado seeks to appeal that dismissal.

II. DISCUSSION

Because Alvarado failed to exhaust his administrative remedies under NACARA , his only

basis for contending that the IJ should have reopened his case is that the IJ should have exercised his

sua sponte authority to do so. As discussed below, jurisdiction does not lie for this Court to consider

that issue.

A. NACARA

NACARA provides that a qualified Salvadoran national may reopen a deportati on proceeding

if the national files a petition within a time frame set by the Attorney General. NACARA § 203(c).

The Attorney General set the time frame to file special motions to reopen under NACARA in 81 The Attorney General set the earliest filing date that petitioners could file a special

motion to reopen as January 16, 1998. 64 Fed. Reg. 13664 (March 22, 1999).

3 C.F.R. § 1003.43(e); it states that a motion to reopen under NACARA § 203 “must be filed no later

than September 11, 1998.” 1

Alvarado petitioned the IJ to reopen his case under NACARA in November 1999, over one

year after the September 11, 1998 deadline. His delinquency precludes this Court from exercising

jurisdiction over his appeal of the NACARA proceeding. Section 1252(d) of Title 8 provides that

a court may review a final order of removal only if an “alien has exhausted all administrative remedies

available to the alien as of right.” 8 U.S.C. § 1252(d). In the context of deportation cases, this Court

has held that where a statute requires exhaustion of administrative remedies, “an alien’s failure to

exhaust his administrative remedies serves as a jurisdictional bar to [this Court’s] consideration of the

issue.” W ang v. Ashcroft

, 260 F.3d 448, 452 (5th Cir. 2001). Persuasive authority also suggests that

failure to meet a timely filing requirement for review of deportation proceedings strips a reviewing

court of jurisdiction. H

aroutunian v. INS

, 87 F.3d 374, 375 (9th Cir. 1996) (“It is well settled that

the requirement of a t imely petition for review is mandatory and jur isdictional.”). In effect,

A lvarado’s failure to meet the September 11, 1998 deadline constituted a failure to exhaust his

administrative remedies. This failure deprives this Court of jurisdiction specific to the special

exception for reopening a deportation case under NACARA.

B. An IJ’s sua sponte authority

Despite Alvarado’s failure to file a t imely petition under NACARA, Alvarado contends that

the IJ should have exercised his sua sponte authority to reopen the case. The Code of Federal2 This provision in the C.F.R. was formerly numbered as § 3.23(b).

3 A denial of an untimely motion to reopen has the same legal effect as a failure to exercise

sua sponte authority to reopen a case. Wang , 260 F.3d at 453 n.4 (treating the standard for

reopening a case sua sponte as the same standard for reopening a case where a petitioner has filed

an untimely motion).

4 Regulations grants an IJ sua sponte authority to reopen a case. 8 C.F.R. § 1003.23(b). 2 It states that

“[a]n [IJ] may upon his or her own motion at any time, or upon motion of . .

. the alien, reopen or

reconsider any case in which he or she has made a decision

. . . .” I d. ; accord Wang

, 260 F.3d at 453;

In re G-D-

, Int. Dec. 3418, 1999 WL 1072237 (BIA 1999). Likewise, 8 C.F.R. § 1003.2(a) grants

the BIA similar sua sponte authority. This Court has not yet ruled as to whether it has jurisdiction

to consider whether an IJ or the BIA should have exercised sua sponte authority to reopen a case.

Wang

, 260 F.3d at 453 & n.4 (declining to decide whether jurisdiction was appropriate regarding the

IJ’s decision not to exercise sua sponte jurisdiction because p et itioner had failed to exhaust

administrative remedies); cf. Lara v. Trominski

, 216 F.3d 487, 496 (5th Cir. 2000) (holding—in the

context of a timely filed motion—that jurisdiction is proper to consider a BIA’s denial of a motion

to reopen). 3

Multiple circuits have held that they lack jurisdiction to hear such claims. S ee, e.g., Ekimian

v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002) (“Because we cannot discover a sufficiently meaningful

standard against which to judge the BIA’s decision not to reopen under § 3.2(a), we hold that we do

not have jurisdiction

t o review the [petitioners’] claim that the BIA should have exercised its s ua

sponte power.”); Luis v. INS , 196 F.3d 36, 40 (1st Cir. 1999) (opining that it had no jurisdiction to

review a petitioner’s claim that the BIA should have invoked its sua sponte authority because “the

very nature of the claim renders it not subject to judicial review”); but see Anin v. Reno, 188 F.3d5

1273, 1279 (11th

Cir. 1999) (holding that 8 C.F.R. § 3.2 (a) “gives the BIA n on-review able

discretion to dismiss [petitioner’s] claim,” yet curiously analyz i ng that decision under an abuse of

discretion standard and finding no abuse of discretion) (emphasis added).

In Belay-Gebru v. INS, 327 F.3d 998 (10th Cir. 2003), the Tenth Ci rcuit examined this

j urisdictional issue after a petitioner had filed an untimely motion for review of de portati on

proceedings. The court held that it lacked jurisdiction because the only basis for reopening the case

sua sponte, 8 C.F.R. § 1003.2(a), “provides no standards controlling or directing the BIA’s decision

whether to reconsider on its own motion.” I d. at 1001. Because the Supreme Court has opined that

“review is not to be had if the statute is drawn so that a court would have no meaningful standard

against which to judge the agency’s exercise of discretion,” Heckler v. Chaney , 470 U.S. 821, 830

(1985), t he Tenth Circuit refrained from exercising jurisdiction over the s ua sponte issue.

Belay-Gebru, 327 F.3d at 1001.

The reasoning of Belay-Gebru is persuasive. The Code of Federal Regulations suggests that

no meaningful standard exists against which to judge an IJ’s decision to exercise sua sponte authority

to reopen deportati on proceedings. The relevant provision states that “[a]n Immigration Judge m ay

upo n his o r her own motion at any time, or upon motion of the Service or the alien, reopen or

reconsider an y case in which he or she has made a decision . . . .” 8 C.F.R. § 1000.23 (emphasis

added). The permissive, “may,” indicates that reopening the case is not mandatory, but rather within

the discretion of the IJ. S ee B LACK ’ S L AW D ICTIONARY 993 (7th ed. 1999). That is, it implies that

the IJ is under no obligation to reopen a case. Were the presence of any circumstance sufficient to

compel an IJ to reopen the case, then the plain meaning of “may” would be contravened. The Code

of Federal Regulations thus suggests that a reviewing court has no legal standard against which to6

judge an IJ’s decision not to invoke its sua sponte authority. 8 C.F.R. § 1003.23. Because Supreme

Court precedent prohibits review of such discretionary decisions, see Heckler, 470 U.S. at 830, this

Court lacks jurisdiction.

III. CONCLUSION

For the reasons stated above, we lack jurisdiction to consider this appeal. The petition for

review of the BIA’s ruling is DENIED.