IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-60132

JOSEPH SYLVA, 

 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. A089 541 493

Before HIGGINBOTHAM, DENNIS, and COSTA, Circuit Judges.

PER CURIAM:*

In May 2010, Joseph Sylva, a native and citizen of Gambia, was served 

with a Notice to Appear (NTA), charging him with removability pursuant to 

Section 237(a)(1)(B) of the Immigration and Nationality Act. In August 2016, 

after multiple hearings and continuances, Sylva sought and was granted 

voluntary departure. One month later, Sylva filed a motion to reopen, alleging 

that he had been denied due process at his removal hearing and that he wished 

to file an application for asylum, withholding of removal, and relief under the 

 

* 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

June 12, 2018

Lyle W. Cayce

Clerk

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No. 17-60132

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Convention against Torture. The immigration judge (IJ) denied his motion. 

The Board of Immigration Appeals (BIA) dismissed his appeal. 

We review the denial of a motion to reopen “under a highly deferential 

abuse-of-discretion standard.”1 The BIA abuses its discretion when its decision 

is “capricious, irrational, utterly without foundation in the evidence, based on 

legally erroneous interpretations of statutes or regulations, or based on 

unexplained departures from regulations or established policies.”2

Sylva contends that the BIA’s decision was “capricious and arbitrary” 

because it “failed to address” Sylva’s due-process argument and instead 

construed his motion to reopen as raising only a claim of ineffective assistance 

of counsel. This argument presents a new issue stemming from the BIA’s 

decision. “[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.”3

Because Sylva did not raise this issue in a motion for reconsideration, he did 

not exhaust his administrative remedies.4 We therefore lack jurisdiction to 

resolve this issue.5

Sylva also asserts that the BIA abused its discretion by failing to 

consider evidence of changed country conditions giving rise to a claim of 

religious persecution, particularly the Gambian president’s 2015 declaration 

that the country was an “Islamic State.” To the extent that Sylva is raising a 

new issue which came about only as a result of the BIA’s failure to address his 

 

1 Barrios-Cantarero v. Holder, 772 F.3d 1019, 1021 (5th Cir. 2014) (quoting Zhao v. 

Gonzales, 404 F.3d 295, 303 (5th Cir. 2005)) (internal quotation marks omitted). 2 Id. 

3 Omari v. Holder, 562 F.3d 314, 320 (5th Cir. 2009).

4 See id. at 320–21. 

5 Dale v. Holder, 610 F.3d 294, 298 (5th Cir. 2010) (“It is well-established that [j]udicial 

review of a final removal order is available only if the applicant has exhausted all 

administrative remedies as of right.”) (internal quotation marks omitted). 

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argument, we lack jurisdiction to consider it. To the extent that Sylva is merely 

challenging the BIA’s determination that he “has not indicated that he 

qualifies for an exception to excuse his late filing,” we find that the BIA did not 

abuse its discretion. Under 8 C.F.R. § 1003.23(b)(3), “[a] motion to reopen will 

not be granted unless the Immigration Judge is satisfied that evidence sought 

to be offered is material and was not available . . . at the former hearing.” As 

the IJ noted, Sylva did not identify any evidence that was unavailable at his 

former hearing on August 2, 2016—including evidence of changed country 

conditions which gave rise to a claim for religious persecution.

The petition is thus DISMISSED in part and DENIED in part. 

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