Enriquez-Alvarado v. Ashcroft, No. 03-60294.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtEdith Brown Clement
Citation371 F.3d 246
Decision Date19 May 2004
Docket NumberNo. 03-60294.
PartiesJose Mario ENRIQUEZ-ALVARADO, Petitioner, v. John ASHCROFT, United States Attorney General, Respondent.
371 F.3d 246
Jose Mario ENRIQUEZ-ALVARADO, Petitioner,
v.
John ASHCROFT, United States Attorney General, Respondent.
No. 03-60294.
United States Court of Appeals, Fifth Circuit.
May 19, 2004.

Page 247

Karen Katz Feldman (argued), Tindall & Foster, Houston, TX, for Petitioner.

Jennifer Paisner (argued), David V. Bernal, U.S. Dept. of Justice, Office of Immigration Litigation, Thomas Ward Hussey, Director, Terri Jane Scadron, Robbin K. Blaya, U.S. Dept. of Justice, Civil Div. Immigration Litigation, John Ashcroft, U.S. Dept. of Justice, Washington, DC, Hipolito Acosta, U.S. Immigration & Naturalization Service, Houston, TX, Caryl G. Thompson, U.S. Immigration & Naturalization Service, Attn: Joe A. Aguilar, New Orleans, LA, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before HIGGINBOTHAM, DENNIS and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:


This appeal concerns whether this Court has jurisdiction to consider whether the Board of Immigration Appeals ("BIA") should have compelled the Immigration Judge ("IJ") to reopen a case based on the IJ's sua sponte authority. We hold that we lack jurisdiction.

I. FACTS AND PROCEEDINGS

Jose Mario Enriquez-Alvarado ("Alvarado") is a native and citizen of El Salvador. He arrived in the United States at Brownsville, Texas in October 1988. On January 5, 1989, the Immigration and Naturalization Service ("INS") issued an Order to Show Cause, charging that Alvarado entered the United States without inspection in violation of the Immigration and Nationality Act ("INA") § 241(a)(2), 8 U.S.C. § 1251(a)(2). Alvarado filed an application for political asylum in June 1989,

Page 248

but failed to appear at his immigration hearing. The IJ found him deportable in absentia on November 1, 1989. Alvarado appealed the ruling in November 1989, and the BIA dismissed his appeal in April 1990.

One year after he appealed the IJ ruling, in November 1999, Alvarado petitioned the IJ to reopen his case under the Nicaraguan and Central American Relief Act of 1997 ("NACARA"). The Government did not join in the petition. On August 11, 2000, the IJ denied Alvarado's motion to reopen as untimely. Alvarado appealed this ruling to the BIA. The BIA dismissed the petitioner's appeal. Alvarado seeks to appeal that dismissal.

II. DISCUSSION

Because Alvarado failed to exhaust his administrative remedies under NACARA, his only basis for contending that the IJ should have reopened his case is that the IJ should have exercised his sua sponte authority to do so. As discussed below, jurisdiction does not lie for this Court to consider that issue.

A. NACARA

NACARA provides that a qualified Salvadoran national may reopen a deportation proceeding if the national files a petition within a time frame set by the Attorney General. NACARA § 203(c). The Attorney General set the time frame to file special motions to reopen under NACARA in 8 C.F.R. § 1003.43(e); it states that a motion to reopen under NACARA § 203 "must be filed no later than September 11, 1998."1

Alvarado petitioned the IJ to reopen his case under NACARA in November 1999, over one year after the September 11, 1998 deadline. His delinquency precludes this Court from exercising jurisdiction over his appeal of the NACARA proceeding. Section 1252(d) of Title 8 provides that a court may review a final order of removal only if an "alien has exhausted all administrative remedies available to the alien as of right." 8 U.S.C. § 1252(d). In the context of deportation cases, this Court has held that where a statute requires exhaustion of administrative remedies, "an alien's failure to exhaust his administrative remedies serves as a jurisdictional bar to [this Court's] consideration of the issue." Wang v. Ashcroft, 260 F.3d 448, 452 (5th Cir.2001). Persuasive authority also suggests that failure to meet a timely filing requirement for review of deportation proceedings strips a reviewing court of jurisdiction. Haroutunian v. INS, 87 F.3d 374, 375 (9th Cir.1996) ("It is well settled that the requirement of a timely...

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112 practice notes
  • Zetino v. Holder, No. 08-70390.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 18, 2010
    ...320 F.3d 472, 474-75 (3d Cir.2003); Doh v. Gonzales, 193 Fed.Appx. 245, 246 (4th Cir.2006) (per curiam); Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248-50 (5th Cir.2004); Harchenko v. INS, 379 F.3d 405, 410-11 (6th Cir.2004); Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir. 2003); Ekimian, ......
  • Tamenut v. Mukasey, No. 05-4418.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • March 11, 2008
    ...320 F.3d 472, 474-75 (3d Cir.2003); Doh v. Gonzales, 193 Fed.Appx. 245, 246 (4th Cir. 2006) (per curiam); Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248-50 (5th Cir. 2004); Harchenko v. INS, 379 F.3d 405, 410-11 (6th Cir.2004); Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir.2003); Ekimian ......
  • Gor v. Holder, No. 08-3859.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 4, 2010
    ...320 F.3d 472, 474-75 (3d Cir.2003); Doh v. Gonzales, 193 Fed.Appx. 245, 246 (4th Cir.2006) (per curiam); Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248-50 (5th Cir.2004); Harchenko, 379 F.3d at 410-11; Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir.2003); Ekimian v. INS, 303 F.3d 1153, 115......
  • Ace Prop. Ins. v. Crop Ins. and Risk Management, No. 1:04-cv-40036.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • February 10, 2005
    ...F.3d 20, 24 (1st Cir.2004) ("The exhaustion bar contained in [8 U.S.C. § 1252(d)(1)] is jurisdictional."); Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248 (5th Cir.2004) (exhaustion of § 1252(d)(1) is a jurisdictional prerequisite); Bhiski v. Ashcroft, 373 F.3d 363, 367 (3rd Cir.2004) (sam......
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112 cases
  • Zetino v. Holder, No. 08-70390.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 18, 2010
    ...320 F.3d 472, 474-75 (3d Cir.2003); Doh v. Gonzales, 193 Fed.Appx. 245, 246 (4th Cir.2006) (per curiam); Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248-50 (5th Cir.2004); Harchenko v. INS, 379 F.3d 405, 410-11 (6th Cir.2004); Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir. 2003); Ekimian, ......
  • Tamenut v. Mukasey, No. 05-4418.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • March 11, 2008
    ...320 F.3d 472, 474-75 (3d Cir.2003); Doh v. Gonzales, 193 Fed.Appx. 245, 246 (4th Cir. 2006) (per curiam); Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248-50 (5th Cir. 2004); Harchenko v. INS, 379 F.3d 405, 410-11 (6th Cir.2004); Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir.2003); Ekimian ......
  • Gor v. Holder, No. 08-3859.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 4, 2010
    ...320 F.3d 472, 474-75 (3d Cir.2003); Doh v. Gonzales, 193 Fed.Appx. 245, 246 (4th Cir.2006) (per curiam); Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248-50 (5th Cir.2004); Harchenko, 379 F.3d at 410-11; Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir.2003); Ekimian v. INS, 303 F.3d 1153, 115......
  • Ace Prop. Ins. v. Crop Ins. and Risk Management, No. 1:04-cv-40036.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • February 10, 2005
    ...F.3d 20, 24 (1st Cir.2004) ("The exhaustion bar contained in [8 U.S.C. § 1252(d)(1)] is jurisdictional."); Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248 (5th Cir.2004) (exhaustion of § 1252(d)(1) is a jurisdictional prerequisite); Bhiski v. Ashcroft, 373 F.3d 363, 367 (3rd Cir.2004) (sam......
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