     Case: 14-60676      Document: 00513302700         Page: 1    Date Filed: 12/10/2015




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

                                                                                    FILED
                                    No. 14-60676                            December 10, 2015
                                  Summary Calendar
                                                                               Lyle W. Cayce
                                                                                    Clerk
JOSE ABEL SARABIA-LOPEZ, also known as Abel Sarabia-Lopez,

                                                 Petitioner

v.

LORETTA LYNCH, U.S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A090 867 864


Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
       Jose Abel Sarabia-Lopez, a native and citizen of Mexico, petitions this
court for review of the Board of Immigration Appeals’ (BIA) decision affirming
the Immigration Judge’s (IJ) denial of his motion to subpoena the victim of his
deportable offense and the IJ’s discretionary denial of his application for a
waiver of inadmissibility under former § 212(c) of the Immigration and
Nationality Act (INA), 8 U.S.C. § 1182(c). Sarabia-Lopez contends that the IJ’s


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-60676

denial of his motion to subpoena the victim violated his statutory and due
process right to present evidence, thereby depriving him of a full and fair
hearing on his application for § 212(c) relief. He also contends that the BIA’s
failure to consider and evaluate his arguments regarding the IJ’s refusal to
subpoena the victim violated his due process right to a full and meaningful
review of his claims.
      We must examine our own jurisdiction, whether or not raised by the
parties. Cadle Co. v. Pratt, 524 F.3d 580, 584 (5th Cir. 2008). Judicial review
of a final removal order is available only where the alien has exhausted all
administrative remedies of right. 8 U.S.C. § 1252(d)(1). An alien’s failure to
exhaust an issue before the BIA is a jurisdictional bar to this court’s
consideration of the issue. Wang v. Ashcroft, 260 F.3d 448, 452 (5th Cir. 2001).
“An alien fails to exhaust his administrative remedies with respect to an issue
when the issue is not raised in the first instance before the BIA — either on
direct appeal or in a motion to reopen.” Id. at 452-53. “This exhaustion
requirement applies to all issues for which an administrative remedy is
available to a petitioner as of right.” Omari v. Holder, 562 F.3d 314, 318 (5th
Cir. 2009) (internal quotation marks and citation omitted).        “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.” Id. at 318-19. An exception to the exhaustion requirement exists for
claims of due process violations, except for procedural errors that are
correctable by the BIA. Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004).
      Although Sarabia-Lopez complained to the BIA that the IJ should have
issued the subpoena in question, he did not contend that the IJ’s failure to do
so violated his due process rights. This alleged error falls within the type of
procedural errors that would have been correctable by the BIA. See Roy, 389



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                                  No. 14-60676

F.3d at 136-37; Matter of Vergara, 15 I. & N. Dec. 388 (BIA 1975) (reviewing
and rejecting alien’s claim that the IJ’s refusal to issue a subpoena violated her
due process rights). Thus, we lack jurisdiction to review this issue. See 8 U.S.C.
§ 1252(d)(1); Omari, 562 F.3d at 318-21; Wang, 260 F.3d at 452-53. Similarly,
he failed to raise his due process challenge to the BIA’s order in a motion to
reconsider or reopen; accordingly, we lack jurisdiction to consider the only
other issue raised. Id.
      Accordingly, Sarabia-Lopez’s petition for review is DISMISSED for lack
of jurisdiction.




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