Salgado-Toribio v. Holder
713 F.3d 1267
| 10th Cir. | 2013Background
- Salgado-Toribio, Mexican citizen, entered U.S. illegally in 1998 and was found removable in 2010.
- Immigration judge denied cancellation of removal but granted voluntary departure; BIA affirmed.
- Petitioner repeatedly sought judicial review in multiple circuits, causing extensive procedural delays.
- BIA denied a second motion to reopen as time/number barred and refused sua sponte reopening.
- Petitioner filed a third petition for review; this panel denied in forma pauperis status and dismissed for lack of jurisdiction.
- Court notes continued procedural abuse and terminates review, allowing removal order to be enforced.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA sua sponte reopening decision is reviewable | Salgado-Toribio contends we should review reopening. | Belay-Gebru-type rule forecloses review of sua sponte reopening decisions. | No jurisdiction; review is unavailable. |
| Whether due process challenges to discretionary relief are reviewable | Due process rights were violated in removal proceedings. | No liberty interest in discretionary relief; minimal procedural protections apply. | No jurisdiction to review due process claim; not non-frivolous. |
| Whether the IFP dismissal is proper given frivolous arguments | Petition should proceed due to IFP status. | Appeal is frivolous under 28 U.S.C. § 1915(e). | Frivolous; petition dismissed. |
| Whether stay-of-removal procedures were abused to delay removal | Delay justified by danger in Mexico and family; stay should be granted. | Nken factors require strong showing; stays should not be automatic and delay is improper. | Petitioner abused procedures; stay denial appropriate; removal enjoined only if stay is warranted. |
Key Cases Cited
- Belay-Gebru v. INS, 327 F.3d 998 (10th Cir. 2003) (no jurisdiction to review BIA's sua sponte reopening)
- Tamenut v. Mukasey, 521 F.3d 1000 (8th Cir. 2008) (BIA sua sponte reopening unreviewable)
- Nken v. Holder, 556 U.S. 418 (2009) (stays require four-factor discretionary showing)
- Arambula-Medina v. Holder, 572 F.3d 824 (10th Cir. 2009) (no liberty interest in discretionary relief; minimal due process)
- de la Llana-Castellon v. INS, 16 F.3d 1093 (10th Cir. 1994) (procedural due process rights in immigration proceedings)
- Neitzke v. Williams, 490 U.S. 319 (1989) (frivolous or malicious standard for IFP appeals)
- Trejo-Mejia v. Holder, 593 F.3d 913 (9th Cir. 2010) (jurisdictional questions concerning venue and review of petitions)