Silva-Dos Santos v. Barr

United States Court of Appeals
for the Fifth Circuit

No. 19-60634
Summary Calendar

Viviane Silva-Dos Santos,

Petitioner,

versus

William P. Barr, U.S. Attorney General,

Respondent.

Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A098 797 944

Before Wiener, Southwick, and Duncan, Circuit Judges.
Per Curiam:*
Viviane Silva-Dos Santos, a native and citizen of Brazil, petitions for
review of an order of the Board of Immigration Appeals (BIA) dismissing her
appeal from an immigration judge’s (IJ) denial of her second motion to
reopen. She argues that the BIA legally erred by: (1) erroneously interpreting

*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
October 5, 2020

Lyle W. Cayce
Clerk
Case: 19-60634 Document: 00515589922 Page: 1 Date Filed: 10/05/2020

No. 19-60634
2
the requirements for the time and numerical exceptions to motions to reopen
based on changed country conditions; (2) conflating the de novo and clear
error standards of review; (3) mischaracterizing the IJ’s decision and
affirming findings that the IJ did not make; and (4) relying on an arbitrary
standard of “prima facie eligibility for relief.”
We lack jurisdiction to consider an issue when a petitioner has failed
to exhaust administrative remedies by raising the issue in the first instance
before the BIA. See 8 U.S.C. § 1252(d)(1); Roy v. Ashcroft, 389 F.3d 132, 137
(5th Cir. 2004). “[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.” Omari v. Holder, 562 F.3d 314, 320 (5th Cir. 2009). Silva-
Dos Santos’s arguments contest the BIA’s “act of decisionmaking,” but she
did not file a motion for reconsideration of the BIA’s decision. Id. at 320.
She therefore failed to exhaust her issues, and we lack jurisdiction to consider
the petition for review. See § 1252(d)(1); Omari, 562 F.3d at 320-21.
Silva-Dos Santos’s petition for review is DISMISSED for lack of
jurisdiction.
Case: 19-60634 Document: 00515589922 Page: 2 Date Filed: 10/05/2020