Santos v. BICE

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 14, 2003
• Docket: 02-60585
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS May 14, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-60585 Summary Calendar

CANDIDO SANTOS,

Petitioner,

versus

BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT,

Respondent.

-------------------- Petition for Review of an Order of the Board of Immigration Appeals BIA No. A28 639 968 --------------------

Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Candido Santos has filed a petition for review of the Board

of Immigration Appeals’ (“BIA”) order denying his motion to

reopen his deportation proceeding, which he filed pursuant to

new deadlines set forth in the Nicaraguan Adjustment and Central

American Relief Act (“NACARA”) and the Legal Immigration Family

Equity (“LIFE”) Act. The BIA denied the motion, which was made

complete in June 2000, as untimely under the applicable NACARA

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 02-60585 -2-

regulatory deadlines, and it concluded that Santos was not

alternatively eligible to take advantage of amended LIFE Act

deadlines because he had not demonstrated that he had actually

been deported and then illegally re-entered the country.

Santos has failed to challenge the BIA’s determination that

his claims under NACARA were untimely, and he does not even brief

any claims under NACARA itself. He has effectively abandoned

these claims. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.

1993); Calderon-Ontiveros v. INS, 809 F.2d 1050, 1052 (5th Cir.

1986). Santos’ failure to challenge the BIA’s conclusion that

any NACARA claims were time-barred is the same as if he had not

appealed that aspect of the judgment. See Soadjede v. Ashcroft,

324 F.3d 830, 833 (5th Cir. 2003).

Santos’ primary argument is that this court should take

judicial notice of INS documents showing that he was deported in

1987 or 1988 and remand the case to the BIA. He argues that this

would permit him to demonstrate that he was eligible for NACARA

relief under the extended deadlines set forth in the LIFE Act.

Section 203 of NACARA allowed nationals from El Salvador

(and other Central American nations) to apply for discretionary

relief from deportation under more relaxed terms than is normally

required under immigration laws. See Chapinski v. Ziglar,

278 F.3d 718, 720 (7th Cir. 2002).

The LIFE Act amendments provide that an alien who was

otherwise eligible for suspension of deportation pursuant to No. 02-60585 -3-

NACARA’s amendments to the Illegal Immigration and Reform and

Immigrant Responsibility Act of 1996 (“IIRIRA”) was not barred

from applying for such relief by operation of Immigration and

Naturalization Act (“INA”) § 241(a)(5). See LIFE Act amendment

§ 1505(a)(1)(B)(2)(A), PL 106-554, 2000 HR 4577. Section

241(a)(5) of INA, 8 U.S.C. § 1231(a)(5), provides for

reinstatement of removal orders for aliens who reentered the

United States after having been removed. Therefore, aliens who

were previously barred from seeking relief pursuant to NACARA

because of § 241(a)(5), but who became eligible for relief

pursuant the LIFE Act amendments, were allowed additional time

to file a NACARA motion to reopen. See LIFE Act amendment

§ 1505(a)(2).

Even if Santos could demonstrate that he was eligible to

proceed under the LIFE Act’s extended deadlines, he has not

established that he has satisfied the prerequisites for NACARA

relief. Under NACARA § 203, a Salvadoran national who entered

the United States before certain dates may not apply for

suspension of deportation unless he shows, inter alia, that he

either filed an application for asylum on or before December 31,

1991, or registered for benefits and applied for asylum pursuant

to the settlement agreement in American Baptist Churches

v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991). See IIRIRA

§ 309(c)(5)(C)(i); NACARA § 203(a). Because Santos has not

shown that he has satisfied either of these prerequisites, he is No. 02-60585 -4-

not eligible for NACARA relief under the LIFE Act amendments or

otherwise.

To the extent that Santos argues that the LIFE Act

amendments violate his due-process rights, this court lacks

jurisdiction to consider such contention because Santos did

not administratively exhaust it before the BIA. See Goonsuwan

v. Ashcroft, 252 F.3d 383, 385-86 (5th Cir. 2001) (habeas corpus

proceeding); Wang v. Ashcroft, 260 F.3d 448, 453 (5th Cir. 2001).

Santos’ motion to augment or supplement the record with

documentation allegedly showing that he was deported in 1988 is

DENIED as unnecessary.

For the foregoing reasons, Santos’ petition for review is

DENIED.