UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1128
KINGSLEY KELECHI OGIDEH,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: November 5, 2010 Decided: November 24, 2010
Before AGEE and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition denied by unpublished per curiam opinion.
Liam Ge, Columbia, Maryland, for Petitioner. Tony West,
Assistant Attorney General, Keith I. McManus, Senior Litigation
Counsel, P. Michael Truman, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kingsley Kelechi Ogideh, a native and citizen of
Nigeria, petitions for review of an order of the Board of
Immigration Appeals (“Board”) dismissing Ogideh’s appeal from
his order of removal and denying his motion to remand his case
to the immigration court. For the reasons that follow, we deny
the petition for review.
First, we reject Ogideh’s claim that his due process
rights were violated when he was not provided with an approved,
edited, and signed transcript of his removal hearing and the
immigration judge’s oral decision prior to submission of his
appellate brief to the Board. To succeed on a due process claim
in an asylum or removal proceeding, an alien must establish two
closely linked elements: (1) that a defect in the proceeding
rendered it fundamentally unfair and (2) that the defect
prejudiced the outcome of the case. Anim v. Mukasey, 535 F.3d
243, 256 (4th Cir. 2008); Rusu v. INS, 296 F.3d 316, 320-22, 324
(4th Cir. 2002). Because Ogideh did not demonstrate how the
outcome of his administrative appeal was impacted by this
failure, the Board properly rejected this claim.
Ogideh next challenges the Board’s construing his
motion to remand as a motion to reopen, based on In re Lozada,
19 I. & N. Dec. 637 (B.I.A. 1988), and denying it because Ogideh
failed to substantially comply with Lozada’s requirements for an
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ineffective assistance of counsel claim. We have reviewed
Ogideh’s argument, the relevant record, and the Board’s analysis
of this issue, and hold the Board did not abuse its discretion
in denying the motion. See 8 C.F.R. § 1003.2(a) (2010). The
Board was further correct in concluding that reopening to allow
an alien to pursue discretionary relief is not permitted when
that relief had been explained to the alien, and the alien had
been afforded the opportunity to pursue such relief. See 8
C.F.R. § 1003.2(c)(1) (2010); see also Obioha v. Gonzales, 431
F.3d 400, 408-09 (4th Cir. 2005). The transcript of Ogideh’s
administrative hearing reflects this is precisely what happened
here.
Accordingly, we deny the petition for review
substantially for the reasons stated by the Board. In re:
Ogideh (B.I.A. Dec. 28, 2009). We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
PETITION DENIED
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