Carlos Molina v. Jefferson Sessions, III
689 F. App'x 333
| 5th Cir. | 2017Background
- Carlos Molina, a Mexican national and former U.S. lawful permanent resident, sought review of the BIA’s dismissal of his appeal and denial of his motion to remand/reopen removal proceedings.
- The BIA dismissed Molina’s appeal after concluding the departure bar (8 C.F.R. § 1003.23(b)(1)) deprived the IJ of jurisdiction to consider his motion to reopen.
- Molina argued his motion to reopen was timely because the 90-day filing period should have reset when the conviction supporting removal was vacated; alternatively, he sought equitable tolling from the date of vacation.
- Molina also contended the BIA engaged in improper fact-finding in applying the departure bar and that the bar should not apply where removal resulted from a proceeding later shown defective by a vacated conviction.
- He raised other arguments in reply (distinguishing IJ sua sponte reopening from motions to reopen) and claimed the BIA mischaracterized his motion to remand as a motion to reopen.
- The court dismissed some claims for lack of jurisdiction for failure to exhaust and rejected others as foreclosed by precedent, ultimately dismissing the petition in part and denying it in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review timeliness/equitable tolling | Molina: motion timely or tolled after conviction vacated | Government: issues not properly exhausted before BIA | Dismissed for lack of jurisdiction (failure to exhaust) |
| Application of departure bar to preclude IJ/BIA consideration | Molina: departure bar improperly applied; not before BIA; should not apply when removal from defective proceeding based on vacated conviction | Government: departure bar applies; issue properly before BIA | Rejected Molina’s challenges; departure bar application affirmed as foreclosed by precedent |
| New arguments raised in reply (IJ sua sponte vs motion to reopen; call to revisit departure-bar doctrine) | Molina: reply argues IJ retains sua sponte power and precedent should be reconsidered | Government: arguments waived/not properly preserved | Court declined to consider those reply arguments (waived) |
| Characterization of motion to remand vs motion to reopen | Molina: BIA erred by treating remand as a time-and-number-barred motion to reopen | Government: BIA properly treated motion as reopening and denied as time/number barred | Court found no error in BIA’s treatment and denial |
Key Cases Cited
- Roy v. Ashcroft, 389 F.3d 132 (5th Cir.) (failure to exhaust before BIA bars review)
- Ovalles v. Holder, 577 F.3d 288 (5th Cir.) (departure bar and related limits on reopening/sua sponte relief)
- Garcia-Carias v. Holder, 697 F.3d 257 (5th Cir.) (departure-bar challenges foreclosed where one-motion rule implicated)
- Quezada v. INS, 898 F.2d 474 (5th Cir.) (departure bar applicable despite vacated conviction underlying removal)
- Wang v. Ashcroft, 260 F.3d 448 (5th Cir.) (treatment of motions to remand as motions to reopen and time/number bar analysis)
- Yohey v. Collins, 985 F.2d 222 (5th Cir.) (arguments raised for first time in reply brief are forfeited)