Case: 16-60173      Document: 00514492512         Page: 1    Date Filed: 05/30/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                    No. 16-60173                           May 30, 2018
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
LEVY SAUL SAMAYOA-MONTUFAR,

                                                 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. A077 742 588


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Levy Saul Samayoa-Montufar, a native and citizen of Guatemala,
petitions this court for review of a decision of the Board of Immigration Appeals
(BIA) denying his motion for reconsideration of the BIA’s previous denial as
untimely and number-barred of a motion to reopen, in which he claimed that
his first counsel was ineffective for failing to notify him of his scheduled
removal hearing. Because Samayoa-Montufar submitted additional evidence


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 16-60173

with his motion, the BIA construed it as also seeking reopening of his
immigration proceedings. Samayoa-Montufar additionally seeks review of the
BIA’s decision to deny that motion.
      We will not consider Samayoa-Montufar’s challenges to the BIA’s denial
of his motion for reconsideration based on his assertions that it erred in
denying his previous motion to reopen (1) as time-barred because his first
counsel’s failure to notify him of the removal hearing constituted an exception
to the time limitation pursuant to 8 C.F.R. § 1003.23(b)(4)(ii) and (2) because
contrary to Mata v. Lynch, 

(2015), it believed it could not
exercise its sua sponte authority to reopen the proceedings based on a claim of
ineffective assistance of counsel.      We lack jurisdiction to review those
arguments because Samayoa-Montufar failed to exhaust those claims by
failing to raise them properly before the BIA. See Wang v. Ashcroft, 

, 452-53 (5th Cir. 2001); Townsend v. INS, 

, 181 (5th Cir. 1986).
      Samayoa-Montufar has not shown that the BIA abused its discretion in
denying his motion for reconsideration. See Zhao v. Gonzales, 

,
303 (5th Cir. 2005) (holding the denial of a motion for reconsideration is
reviewed under a “highly deferential abuse-of-discretion standard”). A motion
for reconsideration of a prior BIA decision may be made to obtain a re-
evaluation of record evidence in light of “a change in the law, a misapplication
of the law, or an aspect of the case that the BIA overlooked.” 

; 8 C.F.R. § 1003.2(b)(1).
      The BIA denied Samayoa-Montufar’s motion for reconsideration because
Samayoa-Montufar failed to demonstrate a legal or factual error in its previous
decision or an argument that the BIA overlooked.              In his motion for
reconsideration and his petition for review, Samayoa-Montufar essentially
repeated the same underlying arguments he raised in his previous motion to



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                                 No. 16-60173

reopen. However, a motion to reconsider “is not a process by which a party
may submit, in essence, the same brief presented on appeal” or “seek
reconsideration by generally alleging error in the prior Board decision.” Erazo-
Aguilar v. Sessions, __ F. App’x __, 

, 1 (5th Cir. April 20,
2018) (quoting In re O-S-G-, 24 I. & N. Dec. 56, 57-58 (BIA 2006)). Samayoa-
Montufar’s inclusion of his previously raised arguments in his motion for
reconsideration merely showed his disagreement with the BIA’s prior decision
and was insufficient to justify reconsideration. Serova v. Lynch, 653 F. App’x
801, 802 (5th Cir. 2016).
      Samayoa-Montufar also has not shown that the BIA abused its
discretion in denying his construed motion for reopening. The BIA denied
Samayoa-Montufar’s motion because the submitted evidence was not new or
previously unavailable and material. See § 1003.2(c)(1); INS v. Abudu, 

, 104-05 (1988). Samayoa-Montufar does not argue in his petition for
review that the BIA abused its discretion by denying his construed motion to
reopen on that basis. He has waived any challenge to the BIA’s decision by
failing to brief the issue. See Soadjede v. Ashcroft, 

, 833 (5th Cir.
2003).
      To the extent that Samayoa-Montufar challenges the BIA’s refusal to
exercise its sua sponte authority to grant his construed motion to reopen, we
lack jurisdiction to review that decision. See Hernandez v. Sessions, 684 F.
App’x 435, 436 (5th Cir. 2017); Enriquez-Alvarado v. Ashcroft, 

,
248-50 (5th Cir. 2004).
      For the foregoing reasons, Samayoa-Montufar’s petition for review is
DISMISSED in part for lack of jurisdiction and DENIED in part.




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