* 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that this opinion should not be published and is not precedent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.

United States Court of Appeals

Fifth Circuit

FILED

October 2, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-10341

Summary Calendar

 

TIJANI AHMAD MOMOH,

Petitioner-Appellant,

versus

BOARD OF IMMIGRATION APPEALS,

Respondent-Appellee.

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:02-CV-700-H

--------------------

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

Tijani Ahmad Momoh appeals the dismissal without prejudice

of his petition for a writ of mandamus. Momoh is a citizen of

Nigeria who first entered the United States as a visitor in

August 1979. Momoh was deported in 1981 and reentered the United

States later that year without permission.

The Board of Immigration Appeals (“BIA”) ordered Momoh

removed in 1998. The district court denied Momoh’s petition for

a writ of habeas corpus, and this court affirmed in March 2000. 
No. 03-10341

-2-

The BIA reopened Momoh’s case to permit him to apply for

protection under the Convention Against Torture (“CAT”). Momoh,

however, withdrew his CAT application in January 2001. The order

of removal was reinstated, and Momoh appealed to the BIA.

Prior to his receipt of the BIA’s decision, Momoh filed a

petition for a writ of mandamus in the district court. He sought

an order for the BIA to issue a ruling in his case or for his

release from immigration detention. 

The district court concluded that Momoh was not entitled to

mandamus relief. To the extent that Momoh was seeking habeas

relief, the district court determined that Momoh had not

exhausted administrative remedies. The district court dismissed

the petition without prejudice by judgment entered March 5, 2003.

Momoh filed in this court on March 27, 2003, “Motion to

Review Petitioner’s BIA Decision by this Court.” He sought

review of the BIA’s decision denying him relief from the order of

removal. Momoh explained that the decision had been issued in

January 2003 but that he had not received it. Momoh filed a

petition for review of the BIA’s decision, which is currently

pending.

We must examine the basis of our jurisdiction sua sponte if

necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). 

The notice of appeal must designate the judgment or order that is

appealed and must clearly evince an intent to appeal. See FED.

R. APP. P. 3(c)(1)(B); Mosley v. Cozby, 813 F.2d 659, 660 (5th
No. 03-10341

-3-

Cir. 1987). We construe a notice of appeal liberally to avoid

technical barriers to review. New York Life Ins. Co. v.

Deshotel, 142 F.3d 873, 884 (5th Cir. 1998). “‘A mistake in

designating orders to be appealed does not bar review if the

intent to appeal a particular judgment can be fairly inferred and

if the appellee is not prejudiced or misled by the mistake.’” 

Id. 

Momoh’s “Motion to Review Petitioner’s BIA Decision by this

Court” does not designate the district court’s judgment and

cannot be interpreted fairly to evince an intent to appeal that

judgment. The “Motion to Review Petitioner’s BIA Decision by

this Court” clearly sought review of the BIA’s January 2003

decision. There was no mistake in the designation of the order

to be appealed, and jurisdiction was not conferred by Momoh’s

“Motion to Review Petitioner’s BIA Decision by this Court.” Cf.

Deshotel, 142 F.3d at 884. Accordingly, the appeal is DISMISSED

for lack of jurisdiction.