Rosemeyere Dias-Faria v. Jefferson Sessions, III

Case: 16-60337 Document: 00514221132 Page: 1 Date Filed: 11/01/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 16-60337
FILED
November 1, 2017
Summary Calendar
Lyle W. Cayce
Clerk
ROSEMEYERE DIAS-FARIA,

Petitioner

JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A078 511 906

Before BARKSDALE, PRADO, and OWEN, Circuit Judges.
PER CURIAM: *
Rosemeyere Dias-Faria, a native and citizen of Brazil, seeks review of
the Board of Immigration Appeals’ (BIA) decision not to exercise its sua sponte
authority to reopen her removal proceeding. In support, Dias claims: (1) the
administrative record before the BIA was incomplete; (2) the BIA erred by not
considering that the motion to reopen was unopposed; (3) it improperly found

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
Case: 16-60337 Document: 00514221132 Page: 2 Date Filed: 11/01/2017

No. 16-60337

she was not diligent in waiting 13 years to file the motion; and (4) it
misidentified the relief sought.
This court lacks jurisdiction to review the BIA’s discretionary decision
not to exercise its sua sponte authority to reopen. Enriquez-Alvarado v.
Ashcroft, 371 F.3d 246, 249–50 (5th Cir. 2004) (relying on Heckler v. Chaney,
470 U.S. 821, 830 (1985)). And, to the extent we would have jurisdiction to
review legal or constitutional claims, Dias raises none.
As another basis for relief, Dias claims the BIA should have construed
her brief as seeking equitable tolling of the period for filing a statutory motion
to reopen. But, she did not exhaust this claim before the BIA. Accordingly, we
lack jurisdiction to consider it. 8 U.S.C.A. § 1252(d)(1); Roy v. Ashcroft, 389
F.3d 132, 137 (5th Cir. 2004).
DISMISSED.