Case: 16-60590 Document: 00514613495 Page: 1 Date Filed: 08/23/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 16-60590 August 23, 2018 Summary Calendar Lyle W. Cayce Clerk DWAYNE ANTHONY MYERS, also known as Dwayne A. Myers, also known as Dwane Myers, 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. A040 086 785 Before REAVLEY, JONES, and HIGGINSON, Circuit Judges. PER CURIAM: * Dwayne Anthony Myers, a native and citizen of Jamaica, petitions this court for review of the decision of the Board of Immigration Appeals (BIA) affirming the denial by the Immigration Judge (IJ) of his motion to reopen proceedings. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 16-60590 Document: 00514613495 Page: 2 Date Filed: 08/23/2018 No. 16-60590 We review our subject matter jurisdiction de novo. Garcia-Melendez v. Ashcroft, 351 F.3d 657, 660 (5th Cir. 2003). We will review the BIA’s order but also consider the IJ’s reasoning to the extent it impacted the BIA’s determination. Hakim v. Holder, 628 F.3d 151, 153 (5th Cir. 2010). As an initial matter, Myers references his motion to reconsider throughout his brief but does not challenge the denial of that motion as time and number barred. Therefore, he has waived any challenge to that ruling. See Sharma v. Holder, 729 F.3d 411 n.1 (5th Cir. 2013). Myers asserts that the IJ erred in construing his motion to reopen as regulatory and relying upon the departure bar under 8 C.F.R. § 1003.2(d) and 8 C.F.R. § 1003.23(b)(1) to deny it without consideration of equitable tolling. He argues that the 90-day deadline for filing a motion to reopen should be equitably tolled based on ineffective assistance of counsel and his diligence in pursuing his rights. Regardless of any error in the IJ’s reliance on the departure bar and failure to address Myers’s equitable tolling claim, the BIA addressed Myers’s tolling argument and affirmed the IJ’s determination that the motion was untimely. Moreover, we lack jurisdiction to consider Myers’s equitable tolling claim. See 8 U.S.C. § 1252(a)(2)(C)-(D); Penalva v. Sessions, 884 F.3d 521, 522, 525 (5th Cir. 2018). The Government correctly argues that Myers has not exhausted his administrative remedies with regard to his claims that the BIA erred: (1) in reviewing his equitable tolling claim for “due diligence” rather than “reasonable diligence;” (2) by not considering that he was unable to file his motion to reopen any earlier than Garcia-Carias v. Holder, 697 F.3d 257 (5th Cir. 2012); and (3) by not considering all of the facts relevant to his claim that his counsel was ineffective. Because these arguments are unexhausted, we 2 Case: 16-60590 Document: 00514613495 Page: 3 Date Filed: 08/23/2018 No. 16-60590 lack jurisdiction to consider them. ...
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