Momoh v. Bd Immigration App

* 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that this opinion should not be published and is not precedent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
F I L E D
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.

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No. 03-10341
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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

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No. 03-10341
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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.

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