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

                                                FILED
                                                                 June 9, 2009
                               No. 08-60717
                             Summary Calendar                Charles R. Fulbruge III
                                                                     Clerk

DALI RAMON DAVILA-CATIN

                                           Petitioner

v.

ERIC H HOLDER, JR, U S ATTORNEY GENERAL

                                           Respondent


                    Petition for Review of an Order of the
                       Board of Immigration Appeals
                             BIA No. A94 359 567


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
      Dali Ramon Davila-Catin (Davila), a native and citizen of Nicaragua,
petitions this court for review of the Board of Immigration Appeals (BIA)
decision denying his motion to reopen removal proceedings as untimely. Davila
argues that the BIA erred in denying his motion to reopen because he has an
absolute right to de novo review of the denial of Temporary Protected Status
(TPS). He further asserts that the motion to reopen was timely as to the denial



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-60717

of TPS because he was not denied TPS until January 8, 2008. He argues that
the denial of his motion to reopen would lead to an absurd result and that he is
entitled to a waiver for his conviction of marijuana possession. Davila also
argues that the denial of his motion to reopen violated his due process right to
an administrative review of the denial of TPS. The Government responds by
arguing that this court lacks jurisdiction to review the BIA’s refusal to grant
discretionary relief.
      Because Davila seeks review of the BIA’s sua sponte authority to deny a
motion to reopen and such authority is discretionary, this court lacks jurisdiction
to review the BIA’s decision. See Ramos-Bonilla v. Mukasey, 543 F.3d 216, 219-
20 (5th Cir. 2008). Davila’s argument that his due process rights were violated
by the BIA’s denial of his motion to reopen is unavailing. There is no liberty
interest in a motion to reopen. Altamirano-Lopez v. Gonzales, 435 F.3d 547, 550
(5th Cir. 2006).
      Davila’s argument in his reply brief that the BIA is without discretion to
deny his motion to reopen was not raised before the BIA. Likewise, Davila’s
argument that his motion to reopen was timely filed was not raised before the
BIA. Davila has not exhausted his administrative remedies. As such, this court
lacks jurisdiction to consider these issues. See 8 U.S.C. § 1252(d)(1); Wang v.
Ashcroft, 260 F.3d 448, 452-53 (5th Cir. 2001).
      Accordingly, the petition is DISMISSED.




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