Osorio-Ruano v. Mukasey, No. 07-60261 (5th Cir. 2007)

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 07-60261 Summary Calendar December 18, 2007 Charles R. Fulbruge III Clerk NIVARDO OSORIO-RUANO Petitioner v. MICHAEL B MUKASEY, ACTING U S ATTORNEY GENERAL Respondent Petition for Review of an Order of the Board of Immigration Appeals BIA No. A73 706 674 Before JOLLY, PRADO, and SOUTHWICK, Circuit Judges. PER CURIAM:* Nivardo Osorio-Ruano, a native and citizen of Guatemala, has filed a petition for review of a Board of Immigration Appeals (BIA) decision affirming an Immigration Judge s (IJ) denial of an untimely motion to reopen an in absentia removal proceeding. Osorio argues that the BIA erred and that the IJ erred by declining to exercise sua sponte authority to grant his out-of-time motion to reopen. He contends that the circumstances in his case rise to the level of exceptional circumstances justifying sua sponte reopening. He also * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 07-60261 argues that this court should remand his case because he is prima facie eligible for relief under the Nicaraguan Adjustment and Central American Relief Act. This court lacks jurisdiction to review the decision not to exercise its sua sponte authority to reopen Osorio s removal proceedings. See Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248-50 (5th Cir. 2004). While Osorio relies upon policy considerations that he asserts warrant a remand for consideration of his purported NACARA eligibility, he fails to explain why this court would have authority to remand the case when this court does not have jurisdiction to review the BIA s actions. See 8 C.F.R. § 1003.43(a). For the foregoing reasons, this court lacks jurisdiction to consider this appeal. The petition for review is therefore DENIED. 2

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