     Case: 18-60529      Document: 00515141473         Page: 1    Date Filed: 10/02/2019




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

                                    No. 18-60529                             FILED
                                  Summary Calendar                     October 2, 2019
                                                                        Lyle W. Cayce
                                                                             Clerk
TATIARA PINHO-DE OLIVEIRA,

                                                 Petitioner

v.

WILLIAM P. BARR, U.S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A098 712 495


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Tatiara Pinho-De Oliveira, a native and citizen of Brazil, petitions this
court for review of the order of the Board of Immigration Appeals (“BIA”)
denying her motion to reopen her removal proceedings to pursue relief under
the Violence Against Women Act (“VAWA”). She argues that the BIA abused
its discretion because it did not waive the one-year time limitation under 8
U.S.C. § 1229a(c)(7)(C)(iv) based on its determination that she did not


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-60529     Document: 00515141473     Page: 2   Date Filed: 10/02/2019


                                  No. 18-60529

demonstrate extraordinary circumstances or that her children would suffer
extreme hardship if she were removed from the United States. Pinho-De
Oliveira argues that she has shown extraordinary circumstances because she
suffered abuse from her husband.       She also asserts that her very young
children will suffer extreme hardship if she is removed from the United States.
In addition, she contends that her husband’s act of filing for divorce while her
first motion to reopen was pending was an extraordinary circumstance that
should have tolled the time for filing her motion to reopen under the VAWA.
      Generally, a motion to reopen must be filed within 90 days of the entry
of a final order of removal. § 1229a(c)(7)(C)(i). However, a one-year limitation
period applies to a battered spouse seeking relief under the VAWA if the alien
meets the four requirements listed in the statute. § 1229a(c)(7)(C)(iv)(III). The
Attorney General has the discretion to waive this time limitation if the alien
demonstrates either extraordinary circumstances or extreme hardship to the
alien’s child. § 1229a(c)(7)(C)(iv).
      Pinho-De Oliveira’s motion to reopen was not filed within one year of the
entry of the final removal order. The motion was untimely, and the BIA did
not exercise its discretion to waive the delay because she had shown neither
extraordinary circumstances nor that her children would suffer extreme
hardship because the outcome of the divorce proceeding was speculative.
      We do not have jurisdiction to review a decision of the BIA in a removal
proceeding, except for an asylum ruling, “which is specified under [the relevant
subchapter at issue in this case] to be in the discretion of the Attorney General
or the Secretary of Homeland Security.” 8 U.S.C. § 252(a)(2)(B)(ii). We retain
jurisdiction to consider constitutional claims and questions of law.
§ 1252(a)(2)(D).




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                                 No. 18-60529

      The decision that Pinho-De Oliveira seeks to challenge is a discretionary
determination that we do not have jurisdiction to consider.                  See
§ 1252(a)(2)(B)(ii); Kucana v. Holder, 558 U.S. 233, 237, 249 (2010). Because
Pinho-De Oliveira is essentially challenging the BIA’s weighing of the
evidence, she has not raised a question of law over which we have jurisdiction.
See Joseph v. Lynch, 793 F.3d 739, 742 (7th Cir. 2015).
      In addition, Pinho-De Oliveira contends that her motion to reopen was
timely filed within one year of the BIA’s denial of her prior motion to reopen.
However, she did not raise this argument in her motion to reopen filed with
the BIA. Therefore, this argument is unexhausted, and we lack jurisdiction to
consider it. See Nunez v. Sessions, 882 F.3d 499, 505 n.2 (5th Cir. 2018).
      Petition for review DISMISSED for lack of jurisdiction.




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