Fatubaro v. Garland ( 2022 )

Case: 21-60629 Document: 00516419861 Page: 1 Date Filed: 08/04/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 21-60629 August 4, 2022
Summary Calendar Lyle W. Cayce
Clerk
Olasupo Fatubaro,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A078 990 809
Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam:*
Olasupo Fatubaro, a native and citizen of Nigeria, timely petitions us
for review of the Board of Immigration Appeals’ (BIA) denial of his motion
to reconsider.
*
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opinion should not be published and is not precedent except under the limited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.
Case: 21-60629 Document: 00516419861 Page: 2 Date Filed: 08/04/2022
No. 21-60629
We review the denial of a motion to reconsider under an abuse-of-
discretion standard. Gonzales-Veliz v. Barr, 938 F.3d 219, 226 (5th Cir. 2019).
Under this standard, Fatubaro must identify either a “change in the law, a
misapplication of the law, or an aspect of the case that the BIA overlooked.”
Zhao v. Gonzales, 404 F.3d 295, 304 (5th Cir. 2005)). The BIA's decision will
stand unless it was “capricious, racially invidious [or] utterly without
foundation in the evidence.” Id. (quoting Pritchett v. INS, 993 F.2d 80, 83
(5th Cir. 1993)). Fatubaro does not argue that the motion was timely
received, and the BIA does not have a mailbox rule. See Matter of Liadov, 23
I. & N. Dec. 990, 991-93 (BIA 2006).
We lack jurisdiction to consider Fatubaro’s arguments. To the extent
he argues that his motion should not have been denied for timeliness after
being rejected for improper service and that his motion should have been
equitably tolled, these arguments are unexhausted. Lopez-Dubon v. Holder,
609 F.3d 642, 644 (5th Cir. 2010). Fatubaro also argues that the BIA should
not have declined to exercise its sua sponte authority because he did not ask
for this relief, and that it should not have applied the departure bar when
denying sua sponte relief, but we lack jurisdiction to review the exercise of
that authority. Hernandez-Castillo v. Sessions, 875 F.3d 199, 207 (5th Cir.
2017). We also note that he argues the merits of his motion, but without
jurisdiction we have no basis to consider that argument.
DISMISSED.
2