Jose Escobar v. William Barr, U. S. Atty Gen

United States Court of Appeals
for the Fifth Circuit

No. 18-60865

Jose Ernesto Escobar, also known as Jose Escobar, also known as
Jose Escobar Hernandez,

Petitioner,

versus

William P. Barr, U.S. Attorney General,

Respondent.

Petition for Review of the Order of the
Board of Immigration Appeals
BIA No. A095 030 659

Before Higginbotham, Jones, and Higginson, Circuit Judges.
Per Curiam:*
Petitioner Jose Ernesto Escobar, a native and citizen of El Salvador,
entered the United States without authorization in 2001. He was ordered
removed in absentia in 2006 after his temporary protected status (“TPS”)

*
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opinion should not be published and is not precedent except under the limited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.
United States Court of Appeals
Fifth Circuit
FILED
October 6, 2020

Lyle W. Cayce
Clerk
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No. 18-60865
2
expired.
1
He has since filed two unsuccessful motions to reopen his removal
proceedings. In 2017, an immigration judge denied his second motion to
reopen, as well as his subsequent motion for reconsideration. The Board of
Immigration Appeals (“BIA”) dismissed Escobar’s appeal, and he filed this
petition for review in December 2018. In September 2019, after the parties
had submitted their briefs, Escobar filed an advisory notifying the Court that
he had been granted lawful permanent resident status.
If, during the pendency of litigation, the complaining party receives
the relief he originally sought to obtain in court, the action becomes moot and
must be dismissed for lack of subject-matter jurisdiction.
2
In this case,
Escobar has received even more relief than he requested: His lawful
permanent resident status is a greater benefit than the TPS he sought to
obtain through reopening.
Nevertheless, Escobar asserts that his case falls within the limited
exception to mootness for claims that are “capable of repetition yet evading
review.”
3
“The capable-of-repetition doctrine applies only in exceptional
situations where the following two circumstances are simultaneously

1
Temporary protected status is available to certain foreign nationals present in the
United States whose home country is designated by the Secretary of Homeland Security as
unsafe due to conflict, disaster, or other “extraordinary and temporary conditions . . . that
prevent . . . nationals of the state from returning to the state in safety . . . .” 8 U.S.C.
§ 1254a(b)(1)(C). A country’s nationals are eligible for TPS only as long as that country’s
official designation lasts. Id. § 1254a(b)(2)(B). In addition, each individual TPS recipient
must re-register periodically. In this case, Escobar received TPS in 2001 and renewed his
TPS in 2003. However, his next renewal application was denied, leaving him without legal
status.
2
See Envt’l Conservation Org. v. City of Dallas, 529 F.3d 519, 531 (5th Cir. 2008);
Am. Med. Ass’n v. Bowen, 857 F.2d 267, 270 (5th Cir. 1988).
3
See Bayou Liberty Ass’n, Inc. v. U.S. Army Corps of Eng’rs, 217 F.3d 393, 398 (5th
Cir. 2000).
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No. 18-60865
3
present: (1) the challenged action is in its duration too short to be fully
litigated prior to cessation or expiration, and (2) there is a reasonable
expectation that the same complaining party will be subject to the same action
again.”
4

Escobar, who bears the burden of proof,
5
does not address the first
prong of the exception. As to the second, he offers no evidence for the
contention that he could “be subjected to the same, or substantially similar
treatment by the [BIA] in the future.” It is hard to imagine how he could be,
given that he now has permanent legal status. Instead, he speculates that a
hypothetical “noncitizen similarly situated” might in the future be subjected
to the same alleged errors by the BIA. However, the capable-of-repetition
doctrine only applies where “the same legal issue . . . is likely to recur in
future controversies between the same parties.”
6
We “cannot adjudicate the
rights of [those] who are not parties before” us.
7

In sum, Escobar’s receipt of lawful permanent resident status
rendered the relief he sought from the BIA redundant and mooted his appeal.
We therefore dismiss Escobar’s petition for review for lack of subject-matter
jurisdiction.

4
Id. (internal quotation marks and alterations omitted) (quoting Spencer v. Kemna,
523 U.S. 1, 17 (1998)).
5
See Lopez v. City of Houston, 617 F.3d 336, 340 (5th Cir. 2010).
6
Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1976 (2016) (emphasis
added).
7
Tardan v. Cal. Oil Co., 323 F.2d 717, 722 (5th Cir. 1963).
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