Elvis Barillas-Rivera v. Loretta Lynch
668 F. App'x 81
| 5th Cir. | 2016Background
- Barillas-Rivera, a Guatemalan national and lawful permanent resident since 2002, was convicted in 2009 of a state controlled-substance offense and found removable under 8 U.S.C. § 1227(a)(2)(B)(i).
- At removal proceedings the IJ noted a separate 2009 state burglary conviction might qualify as an aggravated felony under 8 U.S.C. § 1101(a)(43)(G), which would bar cancellation, asylum, and withholding claims; Barillas failed to prove he was not so convicted.
- The IJ denied his CAT claim; Barillas appealed to the BIA and filed multiple motions to reopen; prior petition for review was dismissed for lack of jurisdiction.
- Barillas filed a third motion to the BIA, construed as a motion to reconsider and to reopen; the BIA denied reconsideration as untimely and denied reopening as untimely and numerically barred, and declined to exercise sua sponte reopening.
- Barillas timely petitioned this court only as to the BIA’s denial of his third motion; the court’s review is therefore limited to legal or constitutional claims because his removability stems from a controlled-substance conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA erred by construing motion as motion to reconsider (vs motion to reopen) | Barillas: BIA should have treated it as motion to reopen to address changed law affecting eligibility | Government: BIA properly characterized motion; motions to reopen require new evidence, reconsideration addresses record errors | Court: Denied — BIA properly construed it as reconsideration; Zhao distinction controls |
| Whether BIA had to reach merits despite finding motion untimely and numerically barred | Barillas: BIA should have evaluated statutory eligibility in light of recent law | Government: No duty to address merits once procedural bars apply | Court: Denied — BIA need not decide merits when procedural grounds dispose; Bagamasbad rule applies |
| Whether claim framed as legal challenge converts discretionary-reopening denial into reviewable legal issue | Barillas: Framing as legal issue creates jurisdiction under §1252(a)(2)(D) | Government: Substance controls; discretionary denials remain unreviewable | Court: Denied — request for discretionary relief is not a question of law for §1252(a)(2)(D) (Hadwani) |
| Whether court can review BIA’s refusal to reopen sua sponte | Barillas: Seeks review of BIA’s refusal to exercise sua sponte reopening | Government: Such refusals are committed to agency discretion and not reviewable | Court: Dismissed — lacks jurisdiction to review BIA’s refusal to reopen sua sponte (Ramos-Bonilla maintained post-Mata) |
Key Cases Cited
- Moncrieffe v. Holder, 133 S. Ct. 1678 (Sup. Ct.) (explains aggravated-felony consequences for certain convictions)
- Mata v. Lynch, 135 S. Ct. 2150 (Sup. Ct.) (jurisdictional scope over denials to reopen or reconsider)
- INS v. Bagamasbad, 429 U.S. 24 (Sup. Ct.) (courts/agencies need not decide issues unnecessary to the result)
- Ramos-Bonilla v. Mukasey, 543 F.3d 216 (5th Cir.) (BIA sua sponte reopening decisions not reviewable)
- Hadwani v. Gonzales, 445 F.3d 798 (5th Cir.) (discretionary-relief requests not converted into reviewable legal questions)
- Zhao v. Gonzales, 404 F.3d 295 (5th Cir.) (distinguishes motions to reopen from motions to reconsider)