Disotuar-Garcia v. Garland

Case: 21-60133 Document: 00516389277 Page: 1 Date Filed: 07/11/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals

Fifth Circuit FILED

July 11, 2022

No. 21-60133

Summary Calendar Lyle W. Cayce

Clerk Nelson Disotuar-Garcia,

Petitioner, versus

Merrick Garland, U.S. Attorney General,

Respondent.

Petition for Review of an Order of the Board of Immigration Appeals Agency No. A213 287 464

Before Wiener, Dennis, and Haynes, Circuit Judges.

Per Curiam:*

Nelson Disotuar-Garcia, a native and citizen of Cuba, petitions for review of the decision of the Board of Immigration Appeals (BIA) dismissing his appeal of the decision of the immigration judge (IJ) denying his motion to reopen his removal proceedings and rescind his in absentia order of removal.

Case: 21-60133 Document: 00516389277 Page: 2 Date Filed: 07/11/2022

No. 21-60133

After briefing was complete, the BIA granted the parties’ joint motion to reopen and remanded the matter to the IJ for further proceedings. As a result, the respondent has filed a motion to dismiss the petition for review for lack of jurisdiction.

Federal appellate courts generally have jurisdiction to review “final order[s] of removal.” 8 U.S.C. § 1252(a)(1); see Espinal v. Holder, 636 F.3d 703, 705 (5th Cir. 2011). An order of removal becomes final upon affirmance of the IJ’s decision by the BIA or upon expiry of the time for appealing the IJ’s decision. Espinal, 636 F.3d at 705; 8 U.S.C. § 1101(a)(47)(B). Because this court may review a final order of removal only if “the applicant has exhausted all administrative remedies of right,” failure to exhaust results in a jurisdictional bar to review. Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004); § 1252(d)(1).

In this case, the BIA has granted a motion to reopen proceedings in which Disotuar-Garcia was ordered removed in absentia and has remanded the case to the IJ. The BIA must address any claims arising from these proceedings before Disotuar-Garcia can assert them before this court. See Roy, 389 F.3d at 137. Because the record indicates that Disotuar-Garcia is currently pursuing administrative remedies below, he is no longer subject to a final order of removal that this court has jurisdiction to review, and the petition for review should be dismissed for want of jurisdiction. See id.; see also Gregoire v. Holder, 421 F. App’x 432, 433 (5th Cir. 2011) (holding that a BIA order granting reconsideration and remanding the matter to an IJ deprived this court of jurisdiction). 1

Case: 21-60133 Document: 00516389277 Page: 3 Date Filed: 07/11/2022

No. 21-60133 MOTION TO DISMISS GRANTED. PETITION FOR

REVIEW DISMISSED.