     Case: 15-60521      Document: 00513761794         Page: 1    Date Filed: 11/16/2016




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


                                    No. 15-60521                         FILED
                                  Summary Calendar               November 16, 2016
                                                                    Lyle W. Cayce
                                                                         Clerk
ARISTEO SANCHEZ,

                                                 Petitioner

v.

LORETTA LYNCH, U.S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A091 096 457


Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Petitioner Aristeo Sanchez petitions this court for review of the decision
of the Board of Immigration Appeals (BIA) denying a motion for
reconsideration of the immigration judge’s (IJ’s) denial of his motion to reopen
his removal proceedings. Sanchez was deported in 2004, as an alien convicted
of an aggravated felony and a controlled substance offense. See 8 U.S.C.
§ 1227(a)(2)(A)(iii), (a)(2)(B)(i). In 2013, Sanchez’s counsel filed a motion to


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-60521

reopen the removal proceedings pursuant to 8 C.F.R. § 1003.23(b)(1), which
provides that an IJ “may upon his or her own motion at any time . . . reopen or
reconsider any case in which he or she has made a decision, unless jurisdiction
is vested with the Board of Immigration Appeals.” See 8 C.F.R. § 1003.23(b)(1).
Sanchez asserted that, pursuant to the Supreme Court’s decision in Lopez v.
Gonzales, 549 U.S. 47 (2006), his conviction for possession of a controlled
substance was no longer considered an aggravated felony, making him eligible
for cancellation of removal. Sanchez further asserted that, despite his removal
in 2004, he was not precluded from filing a motion to reopen his removal
proceedings because in Garcia-Carias v. Holder, 697 F.3d 257 (5th Cir. 2012),
this court had abrogated the so-called “departure bar” regulations, which
jurisdictionally barred review of a motion to reopen filed by a person who had
departed the United States. See 8 C.F.R. § 1003.2(d); § 1003.23(b)(1).
      We review the denial of a motion to reconsider for abuse of discretion.
Zhao v. Gonzales, 404 F.3d 295, 301 (5th Cir. 2005). To succeed on such a
motion, the movant must identify a change in the law, a misapplication of the
law, or an aspect of the case that the BIA overlooked. Id.
      Sanchez’s first three issues challenge the denial of his motion for
reconsideration based on the BIA’s determination that his claim of equitable
tolling was “a legal argument that he did not raise either in his motion to
reopen that was filed with the Immigration Judge or in his appellate
arguments on appeal.”      Sanchez asserts that (1) the 90-day deadline for
statutory motions to reopen is subject to equitable tolling, (2) the BIA erred in
concluding that he did not exhaust his administrative remedies with respect
to his claim for equitable tolling, and (3) his case warranted equitable tolling.
      “An alien seeking to reopen his removal proceedings has two options:
(1) he can invoke the court’s regulatory power to sua sponte reopen proceedings



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under [§ 100.23(b)] or (2) he can invoke his statutory right to reopen
proceedings under 8 U.S.C. § 1229a(c)(7).” Lugo-Resendez v. Lynch, 831 F.3d
337, 340-41 (5th Cir. 2016). After briefing was completed in this case, this
court “joined our sister circuits in holding that the deadline for filing a motion
to reopen under § 1229a(c)(7) is subject to equitable tolling.” Id. at 344. The
availability of equitable tolling does not afford Sanchez relief, however,
because the BIA determined that Sanchez failed properly to exhaust this issue
by raising it either in his motion to reopen or in his arguments on appeal.
      “Petitioners fail to exhaust their administrative remedies as to an issue
if they do not first raise the issue before the BIA, either on direct appeal or in
a motion to reopen.” Omari v. Holder, 562 F.3d 314, 318 (5th Cir. 2009). A
motion for reconsideration is not the proper avenue for raising new issues or
arguments, so an issue raised for the first time in a motion for reconsideration
does not satisfy the exhaustion requirement. Id. at 318-19. The exhaustion
requirement requires “some affirmative action” on the part of petitioners, and
petitioners must make “some concrete statement before the BIA to which they
could reasonably tie their claims before this court.” Id. at 321-32.
      Sanchez has not shown that the BIA abused its discretion in determining
that he had not properly exhausted his administrative remedies with respect
to his claim of equitable tolling. See Omari, 562 F.3d at 321-22. Even accepting
his contention that his motion to reopen raised facts that might have been
identified by the IJ as supporting a claim for equitable tolling, Sanchez failed
to contend in his appeal to the BIA that the IJ had failed to perceive his claim.
Cf. Lugo-Resendez, 831 F.3d at 340 (noting that, in his appeal to the BIA, the
petitioner had “urged that the IJ ignored his equitable tolling argument.”).
Rather, Sanchez, who was represented by counsel, continually sought sua
sponte reopening based on exceptional circumstances rather than a request for



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equitable tolling of the statutory period.      Accordingly, this court lacks
jurisdiction to consider Sanchez’s claims that equitable tolling is available and
warranted in his case. See id. at 319.
      Sanchez next contends that the BIA erred as a matter of law in
concluding that the “departure bar” was a jurisdictional barrier to his motion
to reopen. The government argues that because Sanchez did not raise this
argument in his motion for reconsideration, it is not exhausted, so this court
lacks jurisdiction to consider it. Sanchez counters that because the BIA raised
the issue on its own in its decision affirming the IJ, he was not required to
address it in his motion for reconsideration. He asserts that if he had not filed
a motion for reconsideration, his argument that the departure bar is invalid
would have been reviewable; therefore, the “fact that he also filed a motion for
reconsideration cannot render his first petition for review unreviewable,
regardless of the basis of the motion to reconsider.”
      “[T]he BIA’s denial of an appeal and its denial of a motion to reconsider
are two separate final orders, each of which require their own petitions for
review.” Guevara v. Gonzales, 450 F.3d 173, 176 (5th Cir. 2006) (internal
quotation marks and alteration omitted) (citing Stone v. INS, 514 U.S. 386, 394
(1995)). Accordingly, a petition for review of an order denying a motion for
reconsideration does not automatically bring up for review an underlying order
denying a motion to reopen. See Kane v. Holder, 581 F.3d 231, 238 n.14 (5th
Cir. 2009); Lemus v. Holder, 488 F. App’x 882, 883 (5th Cir. 2012).
      Sanchez could have secured this court’s review of his current argument
by either (1) filing a timely petition for review of the BIA’s order applying the
departure bar or (2) urging the issue in his motion for reconsideration. See
Stone, 514 U.S. at 405-06 (noting that when a petitioner seeks review of both
an original order and an order denying reconsideration, the court shall



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consolidate the two petitions “[w]hen the original petition is still before the
court). However, because Sanchez failed to file a timely petition for review of
the BIA’s decision applying the departure bar and did not raise the issue in his
motion for reconsideration, we lack jurisdiction to consider his challenge to the
departure bar. See Kane, 581 F.3d at 237 (holding that petition for review of
BIA’s initial order “does not raise the BIA’s subsequent denial of
reconsideration.”).
      For the foregoing reasons, Sanchez’s petition for review is DENIED.




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