     Case: 17-60132      Document: 00514509293         Page: 1    Date Filed: 06/12/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                      United States Court of Appeals

                                      No. 17-60132
                                                                               Fifth Circuit

                                                                             FILED
                                                                         June 12, 2018

JOSEPH SYLVA,                                                           Lyle W. Cayce
                                                                             Clerk
              Petitioner

v.

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

              Respondent



                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A089 541 493


Before HIGGINBOTHAM, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
       In May 2010, Joseph Sylva, a native and citizen of Gambia, was served
with a Notice to Appear (NTA), charging him with removability pursuant to
Section 237(a)(1)(B) of the Immigration and Nationality Act. In August 2016,
after multiple hearings and continuances, Sylva sought and was granted
voluntary departure. One month later, Sylva filed a motion to reopen, alleging
that he had been denied due process at his removal hearing and that he wished
to file an application for asylum, withholding of removal, and relief under the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                        No. 17-60132
Convention against Torture. The immigration judge (IJ) denied his motion.
The Board of Immigration Appeals (BIA) dismissed his appeal.
       We review the denial of a motion to reopen “under a highly deferential
abuse-of-discretion standard.” 1 The BIA abuses its discretion when its decision
is “capricious, irrational, utterly without foundation in the evidence, based on
legally erroneous interpretations of statutes or regulations, or based on
unexplained departures from regulations or established policies.” 2
       Sylva contends that the BIA’s decision was “capricious and arbitrary”
because it “failed to address” Sylva’s due-process argument and instead
construed his motion to reopen as raising only a claim of ineffective assistance
of counsel. This argument presents a new issue stemming from the BIA’s
decision. “[W]here the BIA’s decision itself results in a new issue and the BIA
has an available and adequate means for addressing that issue, a party must
first bring it to the BIA’s attention through a motion for reconsideration.” 3
Because Sylva did not raise this issue in a motion for reconsideration, he did
not exhaust his administrative remedies. 4 We therefore lack jurisdiction to
resolve this issue. 5
       Sylva also asserts that the BIA abused its discretion by failing to
consider evidence of changed country conditions giving rise to a claim of
religious persecution, particularly the Gambian president’s 2015 declaration
that the country was an “Islamic State.” To the extent that Sylva is raising a
new issue which came about only as a result of the BIA’s failure to address his



       1Barrios-Cantarero v. Holder, 772 F.3d 1019, 1021 (5th Cir. 2014) (quoting Zhao v.
Gonzales, 404 F.3d 295, 303 (5th Cir. 2005)) (internal quotation marks omitted).
      2 Id.
      3 Omari v. Holder, 562 F.3d 314, 320 (5th Cir. 2009).
      4 See id. at 320–21.
      5 Dale v. Holder, 610 F.3d 294, 298 (5th Cir. 2010) (“It is well-established that [j]udicial

review of a final removal order is available only if the applicant has exhausted all
administrative remedies as of right.”) (internal quotation marks omitted).
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                                  No. 17-60132
argument, we lack jurisdiction to consider it. To the extent that Sylva is merely
challenging the BIA’s determination that he “has not indicated that he
qualifies for an exception to excuse his late filing,” we find that the BIA did not
abuse its discretion. Under 8 C.F.R. § 1003.23(b)(3), “[a] motion to reopen will
not be granted unless the Immigration Judge is satisfied that evidence sought
to be offered is material and was not available . . . at the former hearing.” As
the IJ noted, Sylva did not identify any evidence that was unavailable at his
former hearing on August 2, 2016—including evidence of changed country
conditions which gave rise to a claim for religious persecution.
      The petition is thus DISMISSED in part and DENIED in part.




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