Juan Ortiz v. Jefferson Sessions, III
694 F. App'x 970
| 5th Cir. | 2017Background
- Juan Beltran Ortiz, a Mexican national, was removed in 2000 and filed motions years later seeking reopening and reconsideration of his removal.
- Ortiz filed a motion to reopen before the Immigration Judge (IJ) nearly 15 years after the final removal order and expressly invoked the IJ’s sua sponte authority under 8 C.F.R. § 1003.23(b)(1).
- The Board of Immigration Appeals (BIA) affirmed the IJ’s denial of Ortiz’s motion to reopen and denied his motion to reconsider; BIA also rejected his ineffective-assistance-of-counsel (IAC) claim for failure to comply with Matter of Lozada procedures.
- Ortiz argued the departure bar (prohibiting post-removal motions to invoke IJ sua sponte authority) did not apply because motions to reopen by aliens are statutory, not regulatory, and that Lozada strictness should be relaxed.
- The Fifth Circuit reviewed the BIA’s rulings for abuse of discretion and relied on circuit precedent treating untimely motions to reopen as regulatory (subject to the departure bar) and requiring strict Lozada compliance for IAC claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of departure bar to Ortiz’s motion to reopen | Ortiz: departure bar applies only to regulatory motions; his motion was statutory | BIA: motion invoked IJ sua sponte authority and falls under the regulatory departure bar | Court: departure bar applies; Fifth Circuit precedent treating untimely motions as regulatory controls |
| Characterization of untimely motions (statutory vs regulatory) | Ortiz: all motions to reopen filed by aliens are statutory, so bar inapplicable | BIA: regulations expressly allow motions invoking IJ sua sponte power; untimely motions are regulatory | Court: Mata did not overrule Navarro-Miranda/Ovalles; those precedents bind this court and support regulatory treatment |
| Ineffective assistance of counsel claim (Lozada) | Ortiz: BIA should not strictly require Lozada technical compliance | BIA: Lozada procedural requirements are mandatory for IAC claims in motions to reopen | Court: affirmed BIA; strict Lozada compliance is required and Ortiz failed to meet it |
| Reviewability of BIA’s discretionary refusal to sua sponte reopen | Ortiz: BIA erred by not addressing merits of change-in-law argument and IAC claim | BIA: denial was discretionary, also time- and number-barred for alternate motion | Court: lacks jurisdiction to review discretionary decision to exercise sua sponte authority; denial of alternate motion was time- and number-barred and not challenged |
Key Cases Cited
- Zhao v. Gonzales, 404 F.3d 295 (5th Cir. 2005) (standard of review for motions to reopen is abuse of discretion)
- Pritchett v. I.N.S., 993 F.2d 80 (5th Cir. 1993) (abuse-of-discretion review limits reversal to irrational or arbitrary decisions)
- Mata v. Lynch, 135 S. Ct. 2150 (2015) (Supreme Court held courts may review untimely motions to reopen and cautioned against recharacterizing them as BIA sua sponte requests)
- Ovalles v. Holder, 577 F.3d 288 (5th Cir. 2009) (untimely motions to reopen can be deemed regulatory and subject to departure bar)
- Navarro-Miranda v. Ashcroft, 330 F.3d 672 (5th Cir. 2003) (same: departure bar applied to untimely motions)
- Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375 (5th Cir. 2008) (panel is bound by circuit precedent unless effectively overruled)
- Rodriguez-Manzano v. Holder, 666 F.3d 948 (5th Cir. 2012) (Lozada procedural requirements apply to motions to reopen alleging IAC)
- Hernandez-Ortez v. Holder, 741 F.3d 644 (5th Cir. 2014) (strict Lozada compliance is mandatory)
- Enriquez-Alvarado v. Ashcroft, 371 F.3d 246 (5th Cir. 2004) (courts lack jurisdiction to review discretionary decision to exercise BIA sua sponte authority)
- Soadjede v. Ashcroft, 324 F.3d 830 (5th Cir. 2003) (failure to brief an issue effectively abandons that challenge)
DENIED IN PART, DISMISSED IN PART.