Pejman Nassiri v. Jefferson Sessions, III

Case: 16-60718 Document: 00514273322 Page: 1 Date Filed: 12/14/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 16-60718 FILED Summary Calendar December 14, 2017 Lyle W. Cayce Clerk PEJMAN NASSIRI, Petitioner v. JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL, Respondent Petition for Review of an Order of the Board of Immigration Appeals BIA No. A076 893 277 Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges PER CURIAM: * Petitioner Pejman Nassiri, a native and citizen of Iran, petitions for review of an order of the Board of Immigration Appeals (BIA) dismissing his appeal of the denial of his motion to reconsider his 2005 removal order. The BIA denied the motion as untimely and declined to reconsider the removal order sua sponte. Nassiri asserts that (1) his case warranted sua sponte reconsideration; (2) his statutory motion to reconsider was timely because the * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 16-60718 Document: 00514273322 Page: 2 Date Filed: 12/14/2017 No. 16-60718 filing period had been equitably tolled; (3) his due process rights had been violated by a defective Notice to Appear (NTA) and removal hearing; (4) the removal order was null because the grounds for removal were ultra vires and the defective NTA deprived the immigration judge (IJ) of jurisdiction; and (5) the BIA abused its discretion by issuing a single-member summary affirmance of the IJ’s decision. We note initially that “an alien’s failure to exhaust his administrative remedies serves as a jurisdictional bar to our consideration of the issue.” Wang v. Ashcroft, 260 F.3d 448, 452 (5th Cir. 2001). The BIA did not consider Nassiri’s new claims on administrative appeal that: (1) his due process rights were violated by a defective NTA and removal hearing; (2) the removal order was a nullity because the grounds for removal were ultra vires and the defective NTA deprived the IJ of jurisdiction; and (3) equitable tolling was justified by the exceptional circumstance that, six years after his removal, the BIA issued a decision rejecting the statutory interpretation that had rendered him removable. We lack jurisdiction to consider these claims because they are administratively unexhausted. See Eduard v. Ashcroft, 379 F.3d 182, 195 & n.14 (5th Cir. 2004); cf. Lopez-Dubon v. Holder, 609 F.3d 642, 644-45 (5th Cir. 2010). “An alien seeking to reopen his removal proceedings has two options: (1) he can invoke the court’s regulatory power to sua sponte reopen proceedings under either 8 C.F.R. § 1003.23(b) or 8 C.F.R. § 1003.2(a); or (2) he can invoke his statutory right to reopen proceedings under 8 U.S.C. § 1229a(c)(7).” Lugo- Resendez v. Lynch, 831 F.3d 337, 340-41 (5th Cir. 2016) (internal footnote omitted). Here, Nassiri unsuccessfully requested both types of relief. An IJ and the BIA have complete discretion to refuse to exercise their regulatory power ...

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