Juan Salgado v. Jefferson Sessions, III

Case: 14-60507 Document: 00514278552 Page: 1 Date Filed: 12/19/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 14-60507 FILED December 19, 2017 Lyle W. Cayce JUAN S. SALGADO, Clerk Petitioner, v. JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals BIA No. A090 348 499 Before HIGGINBOTHAM, JONES, and GRAVES, Circuit Judges. PER CURIAM: * Petitioner Juan Salgado seeks review of a decision by the Board of Im- migration Appeals dismissing his appeal from an immigration judge’s decision that he lacked jurisdiction to consider Salgado’s post-removal request to reopen his prior removal proceedings. For the reasons that follow, we deny the petition in part and dismiss the petition in part for lack of jurisdiction. *Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. Case: 14-60507 Document: 00514278552 Page: 2 Date Filed: 12/19/2017 No. 14-60507 I Salgado is a native and citizen of Mexico. He was formerly a lawful per- manent resident of the United States, but he was deported in 2009 after plead- ing guilty in Texas to the “aggravated felony” of evading arrest. See 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated felony at any time after admission is deportable.”). Salgado did not appeal that removal order and was removed to Mexico. Three years later, he returned to the United States and was placed in removal proceedings. Salgado requested that the immigration judge hold the proceedings in abeyance while he challenged the 2009 conviction that had rendered him removable. The IJ denied the motion but expressed to Salgado that if his prior conviction were vacated before he perfected his appeal to the BIA, the IJ would “reopen the case and . . . look at it again.” The IJ em- phasized, however, that once Salgado appealed to the BIA, the IJ would “no longer have any authority over the case.” Salgado appealed the IJ’s decision to the BIA. While the BIA appeal was pending, the state court vacated Salgado’s aggravated felony conviction on dou- ble jeopardy grounds. Once the BIA was notified of the vacatur, it remanded the appeal to the IJ without opposition to consider the vacatur’s effect on the re- moval proceedings. On remand, the IJ ruled that the immigration court lacked jurisdiction to reopen, either on Salgado’s motion or sua sponte, for two reasons. First, the ninety-day period in which Salgado could have moved to reopen the 2009 re- moval order under statutory authority, namely 8 U.S.C. § 1229a(c)(7)(C)(i), had long expired. Second, jurisdiction was barred under the regulatory “departure bar” provision of 8 C.F.R. § 1003.23(b)(1) because Salgado had been deported. The IJ stated that if “the [BIA] determines that the court HAS jurisdiction to reopen respondent’s prior removal proceedings under its own ...

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