     Case: 18-60178      Document: 00515099952         Page: 1    Date Filed: 08/30/2019




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

                                                                                FILED
                                    No. 18-60178                          August 30, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
LEILA BARBOSA DIAS-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. A098-982-171


Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:*
       Leila Barbosa Dias-Oliveira challenges the Board of Immigration
Appeals’s (“BIA”) denial of her motion to reopen her removal proceedings. We
DENY her petition.
       In 2005, an Immigration Judge (“IJ”) ordered Dias-Oliveira removed
during an in absentia hearing. But Dias-Oliveira did not leave the United



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-60178    Document: 00515099952      Page: 2    Date Filed: 08/30/2019



                                 No. 18-60178
States until she voluntarily returned to Brazil in 2009.            Dias-Oliveira
reentered the United States in 2016, at which point her 2005 removal order
was reinstated.    Dias-Oliveira moved to reopen her removal proceedings
pursuant to the IJ’s sua sponte regulatory authority under 8 C.F.R.
§ 1003.23(b)(1). The IJ concluded, inter alia, that she lacked jurisdiction to
consider Dias-Oliveira’s motion under § 1003.23(b)(1)’s departure bar. The
BIA affirmed, and Dias-Oliveira timely petitioned for review.
      We have repeatedly held that “we lack jurisdiction to review the BIA’s
decision to decline sua sponte reopening.” Hernandez-Castillo v. Sessions, 875
F.3d 199, 206 (5th Cir. 2017); see Alvarez-De Sauceda v. Barr, 769 F. App’x
149, 150 (5th Cir. 2019) (per curiam). But we have also held that “we do have
jurisdiction to review the BIA’s determination that a legal barrier prevents it
from exercising [its] discretion in the first place.”      Rodriguez-Saragosa v.
Sessions, 904 F.3d 349, 355 (5th Cir. 2018); see Ovalles v. Holder, 577 F.3d 288,
291–98, 300 (5th Cir. 2009) (per curiam). Thus, we conclude that we have
jurisdiction to consider the merits of Diaz-Oliveira’s motion.
      We agree that the departure bar precludes Diaz-Oliveira’s motion. An
IJ may “reopen or reconsider any case in which he or she has made a decision,”
but not if the motion is made “by or on behalf of a person who is the subject of
removal, deportation, or exclusion proceedings subsequent to his or her
departure from the United States.”         8 C.F.R. § 1003.23(b)(1).     We have
previously held that the departure bar applies “to regulatory motions to sua
sponte reopen proceedings.” Lugo-Resendez v. Lynch, 831 F.3d 337, 341 (5th
Cir. 2016); see Navarro-Miranda v. Ashcroft, 330 F.3d 672, 675–76 (5th Cir.
2003). Because Diaz-Oliveira challenges her 2005 removal order subsequent
to her departure from the United States in 2009, the IJ lacked jurisdiction to
consider her motion to reopen her removal proceedings. Thus, we DENY the
petition for review. We also DENY her motion to appoint counsel.
                                       2
