United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 16, 2006
_______________________ Charles R. Fulbruge III
Clerk
No. 04-60678
Summary Calendar
_______________________
EPUZA KAKUNGU MUKADI,
Petitioner,
versus
JOHN D. ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A95-886-890
Before JONES, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Epuza Kakungu Mukadi petitions for review of the Board of
Immigration Appeals’ (“BIA’s”) affirmance, without opinion, of an
Immigration Judge’s (“IJ’s”) denial of her motion to reopen and
reconsider her removal proceedings. Finding no abuse of
discretion, we DENY the petition.
Mukadi is a citizen and national of the Democratic
Republic of Congo (“DRC”). After spending more than four years in
Japan, she illegally entered the United States with three of her
*
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opinion should not be published and is not precedent except under the limited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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children. The INS commenced removal proceedings against her in
August 2002. On August 12, 2003, an IJ denied Mukadi’s request for
relief from removal and ordered her removal to the DRC. In denying
relief from removal, the IJ found that Mukadi’s asylum application
was frivolous. Mukadi did not appeal her case to the BIA.
On October 8, 2003, Mukadi filed a motion to reopen her
case before the IJ. Mukadi conceded that her original asylum
application was frivolous, and asked the judge to either reopen her
case so that she could file a new application, or join her case
with that of her husband, who had a separate asylum application
before the court.
In an opinion dated October 20, 2003, the IJ denied
Mukadi’s motion to reopen, noting that she had previously filed a
frivolous application, “an elaborate fraud complete with fraudulent
supporting documents,” claiming that she was the victim of
atrocities in the DRC, when in fact she was residing in Japan.
(R. 37-38.) Mukadi’s explanations for her frivolous filing — that
she received bad advice and lacked common sense — were rejected by
the IJ, who cited Mukadi’s age at the time her original asylum
application was filed (thirty-seven), the elaborate nature of the
fraud perpetrated against the INS, and the fact that she had lived
in Japan for over four years prior to arriving in the United
States, as reasons why her motion should be denied. The BIA
affirmed without opinion on July 29, 2004.
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This court has jurisdiction over Mukadi’s petition
pursuant to 8 U.S.C. § 1252(a)(1). Although this court generally
reviews BIA, not IJ, decisions, we may review an IJ’s decision
when, as here, the BIA affirms without opinion. Thuri v. Ashcroft,
380 F.3d 788, 791 (5th Cir. 2004). Regardless, motions to reopen
are disfavored, Lara v. Trominski, 216 F.3d 487, 496 (5th Cir.
2000), and this court reviews a denial of a motion to reopen or
reconsider under a highly deferential abuse of discretion standard.
Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). Under the
abuse of discretion standard, this court will let a decision stand
“so long as it is not capricious, racially invidious, utterly
without foundation in the evidence, or otherwise so aberrational
that it is arbitrary rather than the result of any perceptible
rational approach.” Osuchukwu v. INS, 744 F.3d 1136, 1141-42
(5th Cir. 1984).
Looking to the record, there is ample factual and legal
support for the IJ’s decision. Mukadi concedes that she filed a
fraudulent asylum application that included fraudulent supporting
documents, and there was evidence on the record that belied her
claims of ignorance. Based on this evidence alone, the IJ was
within his discretion in denying Mukadi’s motion. Moreover,
8 U.S.C. § 1158(d)(6) makes clear that where “the Attorney General
determines that an alien has knowingly made a frivolous application
for asylum . . . the alien shall be permanently ineligible for any
benefits under [the INA], effective as of the date of a final
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determination on such application.” See Efe v. Ashcroft, 293 F.3d
899, 903 (5th Cir. 2002) (stating same with regard to asylum
proceeding). Such is the case here: Mukadi did not appeal the
IJ’s original determination that her asylum application was
frivolous, nor does she contest the validity of such a
determination. Instead, she offers only excuses for her behavior.
Under 8 U.S.C. § 1158(d)(6), Mukadi was legally barred from
submitting a second asylum application. Thus, this case falls far
short of the standard laid out in Osuchukwu; indeed, it is clear
that the IJ was within his discretion in denying Mukadi’s motion to
reopen, and the BIA did not err in affirming that decision.
The petition for review is DENIED.
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