Case: 19-60924 Document: 00515803725 Page: 1 Date Filed: 03/31/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED March 31, 2021 No. 19-60924 Summary Calendar Lyle W. Cayce Clerk Quang Thai Ming Tran, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A046 587 506 Before Clement, Higginson, and Engelhardt, Circuit Judges. Per Curiam:* Quang Thai Ming Tran, a native and citizen of Vietnam, petitions for review of an order by the Board of Immigration Appeals (BIA) dismissing his appeal from the immigration judge’s (IJ) denial of his motion to reopen the proceedings that resulted in his removal under Immigration and Nationality * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 19-60924 Document: 00515803725 Page: 2 Date Filed: 03/31/2021 No. 19-60924 Act § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), because he had been convicted of an aggravated felony and under § 237(a)(2)(B)(1), § 1227(a)(2)(B)(i), because he had been convicted of an offense relating to a controlled substance. In its order, the BIA adopted the IJ’s determination that Tran’s motion to reopen was not timely filed for purposes of 8 U.S.C. § 1229a(c)(7)(C)(i). It held that Tran had waived any challenge to the IJ’s determinations that he was not entitled to equitable tolling and had not established exceptional circumstances warranting sua sponte reopening. It also agreed with the IJ’s alternative holding that Tran’s due process rights were not violated during his removal proceedings. We have jurisdiction to review the denial of Tran’s motion to reopen. Mata v. Lynch, 576 U.S. 143, 147-48 (2015); 8 U.S.C. § 1252(b)(6). Although our review is limited because Tran was removable based on his conviction of an aggravated felony, we retain jurisdiction to consider “constitutional claims or questions of law.” § 1252(a)(2)(C), (D). We review the denial of a motion to reopen removal proceedings under “a highly deferential abuse- of-discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). Because the BIA adopted and relied on the IJ’s decision in addition to providing its own reasons, we will consider both decisions. Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007). In his petition for review, Tran argues that his due process rights were violated because his notice to appear failed to allege facts establishing that he was removable based on his controlled substance conviction. He contends that it did not identify the substance underlying his conviction to show that it was a controlled substance as defined in 21 U.S.C. § 802. Tran argues that his proceedings should be reopened in light of that due process violation because his resulting order of removal was a gross miscarriage of justice. Tran does not contend that the IJ and BIA erred in determining that his motion to reopen was not …
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