     Case: 11-60010     Document: 00511797078         Page: 1     Date Filed: 03/22/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          March 22, 2012
                                     No. 11-60010
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

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

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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). Merino-
Fernandez also argues that the BIA violated his due process rights by enforcing



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                                No. 11-60010

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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