IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-60165 Summary Calendar

NAILE BERISHA; NEZIR BERISHA,

Petitioners,

versus

JOHN ASHCROFT, U.S. ATTORNEY GENERAL,

Respondent.

-------------------- Petition for Review of an Order of the Board of Immigration Appeals BIA Nos. A27 229 899, A27 230 302 -------------------- January 24, 2003

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

Naile and Nezir Berisha have filed a petition for review of

the Board of Immigration Appeals’ (“BIA”) order denying their

motion to reopen their deportation proceeding, which they filed so

that their applications for asylum and for relief under the

Nicaraguan Adjustment and Central American Relief Act (“NACARA”)

could be adjudicated. The BIA denied the motion, which was filed

in May 2001, as untimely under the applicable NACARA regulatory

deadlines.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-60165 -2-

The Berishas do not explicitly deny that their motion was

untimely under the applicable regulatory deadlines or that the BIA

abused its discretion in denying the motion accordingly. See

(e)(1) (requiring motion to reopen in NACARA case to

be filed by September 11, 1998). They do maintain that the BIA

abused its discretion by failing to articulate reasons for the

denial of their motion to reopen. The record shows, however, that

the BIA plainly and simply concluded that the motion was untimely,

and it cited regulatory provisions addressing the filing periods

for such motions.

The Berishas also contend that their motion to reopen should

have been granted because the notice of their deportation hearing

in 1987 did not comply with “personal service requirements.” (The

Berishas were ordered deported in absentia in 1987.) Even if there

is some merit to this underlying substantive contention, the

contention does not address the BIA’s conclusion that the motion to

reopen was untimely.

Finally, the Berishas argue for the first time that the

application of NACARA’s September 11, 1998, cutoff date violates

their equal-protection rights, because Legal Immigration Family

Equity (“LIFE”) Act amendments granted the right to file motions to

reopen on or before October 16, 2001, to aliens who had left the

United States and illegally returned, but not to aliens like the

Berishas who have lived in the country continuously. Because the

Berishas failed to exhaust this issue before the BIA, this court No. 02-60165 -3-

lacks jurisdiction to consider it. See Wang v. Ashcroft,

(5th Cir. 2001).

For the foregoing reasons, the Berishas’ petition for review

is DENIED.