* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except unde r the limited

circumstances set forth in 5 TH C IR

. R. 47.5.4.

1 See Rodriguez v. Ashcroft

, 253 F.3d 797, 799 (5th Cir. 2001) (quoting

Lara v. Trominski , 216 F.3d 487, 496 (5th Cir. 2000)). United States Court of Appeals

Fifth Circuit



## FILED

April 4, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-60377

Summary Calendar

NERISA FOSTER WILLIAMS,

Petitioner,

versus

ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

Respondent.

______________________

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A75 886 984

______________________

Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.

PER CURIAM: *

Nerisa Foster Williams, a native and citizen of Jamaica,

petitions for review of the Board of Immigratio n Appeals’ order

denying her motion to reope n her removal proceedings. Williams

also challenges the underlying final order of removal.

“We review a denial of a motion to reopen under a ‘highly

deferential a buse of discretion standard.’” 1 In her motion to2 See 8 U.S.C. § 1229c(d).

3 Compare 8 U.S.C. § 1229c(d) (West 1999 & 2004 Supp.) with 8 U.S.C. §

1252b(e)(2)(A) (repealed 1996).

2 reopen, Williams claimed that she could present new facts

demonstrating that she was entitled to adjustment of status to

permanent residence . Specifically, she argued that the district

court had re fused to admit as evidence a waiver to the two-year

foreign residency requirement of her visa. The BIA did not reach

the merits of Williams’ motion, finding that she was ineligible for

discretionary relief because she had remained in the United States

after her voluntary departure period had expired. 2

Williams urges that she should not be penalized for failing to

depart within the time allowed by the BIA’s grant of voluntary

departure because she was prohibited from doin g so due to

exceptional circumstances. Prior to the enactment of the Illegal

Immigration Reform and Immigrant Responsibility Act, “exceptional

circumstances” were a statutory justification for failing to depart

during the specified time period. This justification was

eliminated, however, with the passage of the IIRIRA. 3 Thus,

because Williams’ deportation proceedings commenced after the

effective date of the IIRIRA, the exceptional circumstances

justification is not available to her.

Williams also contends that by filing her motion to reopen two

days before her voluntary departure period expired, the period was4 The only relevant authority cited on this point is In re Shaar , 21 I&N

Dec. 541, 544 (BIA 1996), in which the BIA held that the filing of a motion to

reopen during the pendency of a period of voluntary departure t o apply for

suspension of deportation did not come within the definition of an “exceptional

circumstance.” This decision clearly cuts against Williams’ argument.

5 See Wang v. Ashcroft

, 260 F.3d 448, 452-53 (5th Cir. 2001). Further, we

note that Williams alleges as grounds for reopening her case the IJ’s failure to

admit as evidence her waiver of the two-year foreign residency requirement. The

record indicates, however, that the waiver was admitted into evidence by the IJ.

Consequently, her motion to reopen could properly have been denied on its merits.

6 See 8 U.S.C. § 1252(b)(1); Karimian-Kaklaki v. INS

, 997 F.2d 108 , 111

(5th Cir. 1993) (“A timely petition for review is a jurisdictional requirement,

and the lack thereof deprives this Court of authority to review final orders of

deportation.”).

3 tolled. We find no authority for this proposition. 4 Further, it

w as not raised before the BIA, and cannot be considered by our

court in the first instance. 5

With respect to her challenge to the BIA’s removal order, we

note that Williams did not file her notice of appeal un til over

three months after the BIA ruled. Because Williams did not file a

timely petition for review of the BIA’s final removal order, we

lack jurisdiction to consider any challenges to that order. 6

PETITION FOR REVIEW DENIED.