Everline Nyabwari v. Eric Holder, Jr.

Filing

UNPUBLISHED OPINION FILED. [14-60477 Affirmed in Part and Dismissed in Part for Lack of Jurisdiction] Judge: TMR , Judge: JLD , Judge: LHS. Mandate pull date is 07/13/2015 [14-60477]

Case: 14-60477

Document: 00513049766

Page: 1

Date Filed: 05/20/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-60477
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
May 20, 2015

EVERLINE GESARE NYABWARI,
Petitioner

Lyle W. Cayce
Clerk

v.
LORETTA LYNCH, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A097 683 208
Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
In August 2000, Everline Gesare Nyabwari, a native and citizen of
Kenya, was admitted to the United States as a nonimmigrant student.
Nyabwari remained in the United States after her visa expired. In July 2010,
she was charged with being removable as an alien who remained in the United
States for a time longer than permitted and for failing to comply with the
conditions of the nonimmigrant status under which she was admitted. It was

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-60477
also alleged that Nyabwari represented herself to be a United States citizen
for purposes of gaining employment. Nyabwari conceded removability as to
the first two charges, but denied that she falsely claimed United States
citizenship. The Immigration Judge (IJ) found her removable on each of the
three grounds. Nyabwari appealed to the Board of Immigration Appeals (BIA).
On September 26, 2013, the BIA issued a decision, concluding that Nyabwari
was not removable for falsely representing herself to be a citizen of the United
States. However, the BIA determined that she remained removable on the two
other grounds—for overstaying her student visa and for failing to maintain her
legal immigration status—and dismissed her appeal.
On October 7, 2013, Nyabwari filed a motion to reconsider, which the
BIA denied on December 5, 2013. Later, on December 24, 2013, Nyabwari filed
a “motion to reopen sua sponte,” which the BIA construed as a motion to
reopen, a motion to reconsider, and as a request that the BIA exercise its sua
sponte authority to reopen. The BIA denied her motion in each regard. On
March 18, 2014, Nyabwari filed another motion to reopen. On June 13, 2014,
the BIA denied the motion as both time barred and number barred. On July
9, 2014, Nyabwari filed the instant petition for review.
A petition for review must be filed no later than 30 days after the date of
a final order of removal. 8 U.S.C. § 1252(b)(1). The period for filing a petition
for review is mandatory and jurisdictional and is not subject to tolling by a
motion for reconsideration. Stone v. INS, 514 U.S. 386, 405 (1995). “[T]he
statutory text . . . contemplates the filing of separate petitions for review
following both the BIA’s initial order and the resolution of any subsequent
motion to reconsider or reopen.” Kane v. Holder, 581 F.3d 231, 237 n.14 (5th
Cir. 2009).

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Nyabwari filed her petition for review on July 9, 2014, within 30 days of
the BIA’s decision denying her second motion to reopen, but more than 30 days
after the BIA’s previous decisions. Accordingly, this court has jurisdiction to
review only the BIA’s June 13, 2014, decision denying Nyabwari’s most recent
motion to reopen. See § 1252(b)(1). To the extent that her petition for review
challenges aspects of the IJ’s decision and earlier BIA rulings, this court lacks
jurisdiction to review these contentions. Even though Nyabwari frames her
argument as a due process challenge, it is simply “an abuse of discretion
argument cloaked in constitutional garb.” See Hadwani v. Gonzales, 445 F.3d
798, 801 (5th Cir. 2006) (internal quotation marks and citation omitted).
Nyabwari’s petition for review is timely as to the BIA’s June 13, 2014,
denial of her motion to reopen. The motion to reopen, however, was not filed
timely from the proceeding it sought to reopen. An alien must file a motion to
reopen within 90 days of the date on which the final administrative decision is
entered. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). The BIA properly
determined that Nyabwari’s motion to reopen was untimely because it was
filed more than 90 days after the BIA’s final decision. See § 1229a(c)(7)(C)(i);
§ 1003.2(c)(2). To the extent that Nyabwari argues that the BIA abused its
discretion by refusing sua sponte to reopen the proceedings, this court lacks
jurisdiction to review such an argument. See Enriquez-Alvarado v. Ashcroft,
371 F.3d 246, 249-50 (5th Cir. 2004).
Accordingly, Nyabwari’s petition for review is DISMISSED in part for
lack of jurisdiction and DENIED in part.

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