United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 4, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-60377
Summary Calendar
NERISA FOSTER WILLIAMS,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
______________________
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A75 886 984
______________________
Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Nerisa Foster Williams, a native and citizen of Jamaica,
petitions for review of the Board of Immigration Appeals’ order
denying her motion to reopen her removal proceedings. Williams
also challenges the underlying final order of removal.
“We review a denial of a motion to reopen under a ‘highly
deferential abuse of discretion standard.’”1 In her motion to
*
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should not be published and is not precedent except under the limited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.
1
See Rodriguez v. Ashcroft, 253 F.3d 797, 799 (5th Cir. 2001) (quoting
Lara v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000)).
reopen, Williams claimed that she could present new facts
demonstrating that she was entitled to adjustment of status to
permanent residence. Specifically, she argued that the district
court had refused to admit as evidence a waiver to the two-year
foreign residency requirement of her visa. The BIA did not reach
the merits of Williams’ motion, finding that she was ineligible for
discretionary relief because she had remained in the United States
after her voluntary departure period had expired.2
Williams urges that she should not be penalized for failing to
depart within the time allowed by the BIA’s grant of voluntary
departure because she was prohibited from doing so due to
exceptional circumstances. Prior to the enactment of the Illegal
Immigration Reform and Immigrant Responsibility Act, “exceptional
circumstances” were a statutory justification for failing to depart
during the specified time period. This justification was
eliminated, however, with the passage of the IIRIRA.3 Thus,
because Williams’ deportation proceedings commenced after the
effective date of the IIRIRA, the exceptional circumstances
justification is not available to her.
Williams also contends that by filing her motion to reopen two
days before her voluntary departure period expired, the period was
2
See 8 U.S.C. § 1229c(d).
3
Compare 8 U.S.C. § 1229c(d) (West 1999 & 2004 Supp.) with 8 U.S.C. §
1252b(e)(2)(A) (repealed 1996).
2
tolled. We find no authority for this proposition.4 Further, it
was not raised before the BIA, and cannot be considered by our
court in the first instance.5
With respect to her challenge to the BIA’s removal order, we
note that Williams did not file her notice of appeal until over
three months after the BIA ruled. Because Williams did not file a
timely petition for review of the BIA’s final removal order, we
lack jurisdiction to consider any challenges to that order.6
PETITION FOR REVIEW DENIED.
4
The only relevant authority cited on this point is In re Shaar, 21 I&N
Dec. 541, 544 (BIA 1996), in which the BIA held that the filing of a motion to
reopen during the pendency of a period of voluntary departure to apply for
suspension of deportation did not come within the definition of an “exceptional
circumstance.” This decision clearly cuts against Williams’ argument.
5
See Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th Cir. 2001). Further, we
note that Williams alleges as grounds for reopening her case the IJ’s failure to
admit as evidence her waiver of the two-year foreign residency requirement. The
record indicates, however, that the waiver was admitted into evidence by the IJ.
Consequently, her motion to reopen could properly have been denied on its merits.
6
See 8 U.S.C. § 1252(b)(1); Karimian-Kaklaki v. INS, 997 F.2d 108, 111
(5th Cir. 1993) (“A timely petition for review is a jurisdictional requirement,
and the lack thereof deprives this Court of authority to review final orders of
deportation.”).
3