Summary Calendar ORFELIO RIERA-ELENA v. Michael Bmukasey, U Sattorney General

* 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should not be published and is not precedent except under the limited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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-61101
Summary Calendar
ORFELIO RIERA-ELENA
Petitioner
v.
MICHAEL B MUKASEY, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A30 983 700
Before JOLLY, DAVIS, and DeMOSS, Circuit Judges:
PER CURIAM:*
Orfelio Riera-Elena (Riera), a native and citizen of Uruguay, filed a 28
U.S.C. § 2241 petition in the district court challenging the Board of Immigration
Appeals’ (BIA) decision affirming the Immigration Judge’s (IJ) discretionary
denial of relief under former § 212(c) of the Immigration and Nationality Act and
the BIA’s decision denying Riera’s second motion to reopen based on ineffective
assistance of counsel. The district court transferred the case to this court
pursuant to the REAL ID Act of 2005, and we now consider the matter as a
United States Court of Appeals
Fifth Circuit
F I L E D
May 2, 2008
Charles R. Fulbruge III
Clerk

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petition for review of the BIA’s decisions. See Rosales v. Bureau of Immigration
and Customs Enforcement, 426 F.3d 733, 736 (5th Cir. 2005).
Riera contends that the IJ deprived him of his right to due process by
failing to afford him sufficient time in which to hire an attorney, failing to
adequately explain what he needed to establish in order to receive § 212(c) relief,
discouraging him from speaking or presenting evidence in support of his § 212(c)
application, and conducting the hearing while he was in shackles. Riera does
not challenge the IJ’s removal order, nor does he argue that the removal hearing
was fundamentally unfair. Rather, he argues, in essence, that the IJ’s actions
hindered his ability to pursue and obtain § 212(c) relief.
Because Riera had no protected liberty or property interest in § 212(c)
relief, he had no due process right to a fair hearing in pursuit of that relief. Cf.
Gutierrez-Morales v. Homan, 461 F.3d 605, 609 (5th Cir. 2006) (“[W]hen there
is no due process right to the ultimate relief sought, there is no due process right
to effective assistance of counsel in pursuit of that relief.”); Nguyen v. District
Director, Bureau of Immigration and Customs Enforcement, 400 F.3d 255, 259
(5th Cir. 2005) (noting that an alien has no due process right to a hearing to
determine whether he warrants discretionary § 212(c) relief). Therefore, Riera
fails to allege a constitutional claim, and we lack jurisdiction to review the issue.
See Assaad v. Ashcroft, 378 F.3d 471, 476 (5th Cir. 2004).
Riera also contends that the BIA erred in denying his second motion to
reopen as untimely and numerically barred. Riera does not dispute that his
second motion to reopen was untimely and numerically barred. Instead, he
argues that the time and numerical limitations set forth in 8 C.F.R.
§ 1003.2(c)(2) should have been equitably tolled based on ineffective assistance
of counsel. Because equitable tolling is not a basis for filing an untimely or
numerically-barred motion under the statute or regulations, this argument is in
essence an argument that the BIA should have exercised its discretion to reopen
the proceeding sua sponte based upon the doctrine of equitable tolling. In

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Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248-50 (5th Cir. 2004), we
concluded that there is no meaningful standard by which to review an IJ’s
discretionary decision not to exercise his or her sua sponte authority to reopen
a deportation proceeding where the motion to reopen was untimely. Therefore,
we lack jurisdiction to consider whether the BIA should have sua sponte
reopened Riera’s removal proceedings based on ineffective assistance of counsel.
Accordingly, Riera’s petition for review is dismissed for lack of jurisdiction.
PETITION DISMISSED.

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