    Case: 16-60381    Document: 00514270489    Page: 1     Date Filed: 12/12/2017




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

                                No. 16-60381
                                                                           Fifth Circuit

                                                                         FILED
                                                                 December 12, 2017
                                                                    Lyle W. Cayce
                                                                         Clerk
MIGUEL MENDIAS-MENDOZA,
Also Known as Javier Arturo Segovia-Mendias,

                                          Petitioner,

versus

JEFFERSON B. SESSIONS, III, U.S. Attorney General.

                                          Respondent.




                      Petition for Review of an Order of
                      the Board of Immigration Appeals




Before SMITH, BARKSDALE, and HIGGINSON, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Miguel Mendias-Mendoza was found deportable by an immigration judge
(“IJ”) in 1991. In 2014―twenty-three years after the IJ’s final deportation
order―Mendias-Mendoza submitted to the IJ a motion to reopen his deporta-
tion. The IJ denied that motion, the Board of Immigration Appeals (“BIA”)
affirmed, and this petition for review followed. We deny the petition.
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                                 No. 16-60381
                                       I.
      Mendias-Mendoza, a native and citizen of Mexico, entered the United
States without inspection on October 4, 1991. On the same day, the Immigra-
tion and Naturalization Service (“INS”) served him with an order to show
cause, charging him with deportability under § 241(a)(1)(B) of the Immigration
and Nationality Act (“INA”), 8 U.S.C. § 1251(a)(1)(B) (1991). The reason was
that Mendias-Mendoza had entered the United States without inspection.
Mendias-Mendoza obtained an attorney, who filed a notice of appearance.

      On October 16, 1991, the IJ held a deportation hearing. In connection
with the hearing, Mendias-Mendoza entered into a written stipulation with the
INS stating that he “underst[oo]d[] the nature and purpose of the deportation
hearing and waive[d] any further explanation thereof.” The stipulation also
provided that he “admit[ted] all of the allegations of fact and conced[ed] the
charge of deportability.” The section of the stipulation allowing Mendias-
Mendoza time to seek relief from deportation was crossed out. The stipulation
further noted that he “agree[d] to accept the decision of the [IJ]” and “waive[d]
appeal.” It was signed by Mendias-Mendoza’s attorney, an INS representative,
and the IJ. Based on the stipulation, the IJ determined that Mendias-Mendoza
was deportable as charged and ordered him deported to Mexico.

      In November 2014, Mendias-Mendoza, through new counsel, moved to
reopen in the immigration court. He asserted that he had lied to immigration
officials in 1991 and had obtained lawful permanent resident (“LPR”) status in
October 1989. The only evidence in support of his motion was his affidavit, in
which he claimed that he gave the Border Patrol agents a fake name in 1991,
falsely informing them that he was undocumented. He also averred that he
returned to the United States on the same day he was deported by using his
LPR card and that he renewed his LPR card on two other occasions. Although

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                                   No. 16-60381
not reflected in his affidavit, Mendias-Mendoza asserted in his motion that his
wife had been granted LPR status in 2009 based on his application. He also
maintained that immigration authorities committed several procedural errors
during his 1991 deportation proceedings. For example, he asserted that they
did not process his fingerprints to verify his identity.

      The IJ initially indicated that the motion to reopen was not untimely,
because the time and numerical limitations on such motions do not apply to
proceedings begun before 1992 under the former INA § 242(b), 8 U.S.C.
§ 1252(b). Then, the IJ concluded that Mendias-Mendoza had “provided no
evidence to support his allegation” regarding his LPR status “other than his
affidavit.” But, the IJ explained, Mendias-Mendoza had not demonstrated that
his alleged LPR status was unavailable at the time of his deportation proceed-
ings. Moreover, the IJ determined that Mendias-Mendoza failed to establish
prima facie eligibility for adjustment of status or to submit a required applica-
tion to adjust his status. Finally, the IJ declined to exercise his sua sponte
discretion to reopen the deportation proceedings.

      The BIA dismissed Mendias-Mendoza’s appeal, agreeing that he had pro-
vided insufficient evidence that he was an LPR at the time of his 1991 depor-
tation proceedings. The BIA also concluded that Mendias-Mendoza had failed
to give material evidence that was previously unavailable, to submit an appli-
cation for relief, or to establish prima facie eligibility for the relief sought. The
BIA similarly declined to exercise its sua sponte authority to reopen.

                                         II.
      “Motions to reopen deportation proceedings are disfavored,” and the
party seeking relief has a heavy burden.          Altamirano-Lopez v. Gonzales,
435 F.3d 547, 549−50 (5th Cir. 2006) (internal quotation marks omitted). We
review “the denial of a motion to reopen under a highly deferential abuse-of-
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                                 No. 16-60381
discretion standard.” Barrios-Cantarero v. Holder, 772 F.3d 1019, 1021 (5th
Cir. 2014) (internal quotation marks omitted). The BIA “abuses its discretion”
when it “issues a decision that is capricious, irrational, utterly without foun-
dation in the evidence, based on legally erroneous interpretations of statutes
or regulations, or based on unexplained departures from regulations or estab-
lished policies.” Id.

      We review the BIA’s conclusions of law de novo and its findings of fact
for substantial evidence. Id. Under “substantial evidence” review, “this court
may not overturn the BIA’s factual findings unless the evidence compels a con-
trary conclusion.” Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009).
Finally, we review only the order of the BIA “unless the IJ’s decision has some
impact on the BIA’s decision,” Mikhael v. INS, 115 F.3d 299, 302 (5th Cir.
1997), in which case we review the IJ’s decision as well, Wang v. Holder,
569 F.3d 531, 536 (5th Cir. 2009). Because the BIA’s decision was largely
based on the IJ’s findings and conclusion, we also consider the IJ’s decision
where appropriate.

                                      III.
      Mendias-Mendoza spends much of his brief attacking the IJ’s 1991
deportation order. We lack jurisdiction to consider those contentions or to eval-
uate the validity of that order. Any petition to review an IJ’s deportation order
“must be filed not later than 30 days after the date of the final order of
removal.” 8 U.S.C. § 1252(b)(1). That time limit is “mandatory and jurisdic-
tional.” Stone v. INS, 514 U.S. 386, 405 (1995); Guirguis v. INS, 993 F.2d 508,
509 (5th Cir. 1993). Accordingly, we lack jurisdiction to consider directly the
1991 deportation order or Mendias-Mendoza’s arguments regarding it.

      Moreover, to the extent that Mendias-Mendoza challenges the BIA’s
discretionary decision not to invoke its sua sponte authority, we lack
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                                      No. 16-60381
jurisdiction. See Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248–50 (5th Cir.
2004). “[A] reviewing court has no legal standard against which to judge an
IJ’s decision not to invoke its sua sponte authority.” Id. at 250.

                                            IV.
       Regarding Mendias-Mendoza’s claim that the BIA improperly denied his
motion to reopen, 1 the BIA may deny a motion to reopen on at least three
independent grounds: (1) “[T]he movant has not established a prima facie case
for the underlying substantive relief sought,” (2) “the movant has not intro-
duced previously unavailable, material evidence,” and (3) the movant is not
entitled to a discretionary grant of relief where discretionary relief is sought. 2
As stated above, the BIA and the IJ concluded that Mendias-Mendoza both
failed to establish a prima facie case for relief and had not introduced previ-
ously unavailable, material evidence. Either ground would be sufficient.

       It is evident that Mendias-Mendoza has not provided any material, pre-
viously unavailable evidence to justify reopening. See Abudu, 485 U.S. at 104–
05; 8 C.F.R. § 1003.23(b)(3). The main thrust of Mendias-Mendoza’s motion is
that he was an LPR at the time of his 1991 deportation hearing and that his
deportation was therefore invalid. As the IJ and BIA explained, however, there
is no reason that information was unavailable at the 1991 deportation hearing.



       1 As a preliminary matter, 8 C.F.R. § 1003.23(b)(1) provides that a “motion to reopen
must be filed within 90 days of the date of entry of a final administrative order of removal,
deportation, or exclusion, or on or before September 30, 1996, whichever is later.” Although
Mendias-Mendoza’s motion clearly exceeded that limit, the IJ did not rely on it as a reason
for denial. Instead, the IJ construed In re Cruz-Garcia, 22 I. & N. Dec. 1155, 1156–59, as
removing Mendias-Mendoza’s case from these time limitations. But Cruz-Garcia did not so
hold. Rather, it held only that motions to reopen proceedings conducted in absentia were not
subject to time limitations. Id. at 1158–59. Accordingly, Cruz-Garcia would not dictate the
application of § 1003.23(b)(1) to Mendias-Mendoza’s case.
       2INS v. Abudu, 485 U.S. 94, 104–05 (1988); see also Manzano-Garcia v. Gonzales,
413 F.3d 462, 469 (5th Cir. 2005); 8 C.F.R. § 1003.23(b)(3).
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                                     No. 16-60381
       Mendias-Mendoza’s only averment that would not have been available
in 1991 is that he twice renewed his LPR status since 1991. But that evidence
is ultimately immaterial—the possibility that Mendias-Mendoza’s LPR status
was renewed just buttresses his assertion that he had LPR status in 1991. The
relevant facts are still that he admitted he was deportable in 1991, but now
claims that he had LPR status since 1989. Accordingly, the BIA did not abuse
its discretion in finding that Mendias-Mendoza had not provided any material,
previously unavailable evidence to justify granting a motion to reopen. 3

                                            V.
      Mendias-Mendoza contends that the BIA denied him due process in con-
sidering the motion to reopen. But the decision whether to grant a motion to
reopen is entirely within the discretion of the BIA and the IJ—“[e]ven if a mov-
ing party has established a prima facie case for relief, an IJ can still deny a
motion to reopen.”         See Altamirano-Lopez, 435 F.3d at 550; 8 C.F.R.
§ 1003.23(b)(1)(iv). The Fifth Amendment right to due process is not violated
unless there is a deprivation of a liberty interest. Assaad v. Ashcroft, 378 F.3d
471, 475 (5th Cir. 2004). Moreover, “the failure to receive relief that is purely
discretionary in nature does not amount to a deprivation of a liberty interest.”
Id. Thus, Mendias-Mendoza did not have a protected liberty interest in his
motion to reopen, and his due-process claim fails. See id.; Altamirano-Lopez,
435 F.3d at 550.

      The petition for review is DENIED.




      3 In his motion, Mendias-Mendoza also asserts that his wife was granted LPR status
based on his LPR status. That statement, however, is not found in his affidavit, and state-
ments made by an attorney in a motion are not evidence. See INS v. Phinpathya, 464 U.S.
183, 188–89 n.6 (1984).
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