Kester Obomighie v. Eric Holder, Jr.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-1071

KESTER IGEMHOKHAI OBOMIGHIE,

Petitioner,

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals.

Submitted: April 16, 2012 Decided: May 10, 2012

Before MOTZ, KING, and DIAZ, Circuit Judges.

Petition dismissed by unpublished per curiam opinion.

Kester Igemhokhai Obomighie, Petitioner Pro Se. Jonathan Aaron
Robbins, 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Unpublished opinions are not binding precedent in this circuit.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:

Kester Igemhokhai Obomighie, a native and citizen of

Nigeria, petitions for review of an order of the Board of

Immigration Appeals (“Board”) denying his motion to reconsider

and to reopen. We dismiss the petition for review.

This court reviews the denial of motions to reopen and

to reconsider for abuse of discretion. INS v. Doherty, 502 U.S.

314, 323-24 (1992); Narine v. Holder, 559 F.3d 246, 249 (4th

Cir. 2009); Mosere v. Mukasey, 552 F.3d 397, 400 (4th Cir.

2009); Jean v. Gonzales, 435 F.3d 475, 481 (4th Cir. 2006); 8

C.F.R. § 1003.2(a) (2011). A motion to reconsider asserts that

the Board erred in its earlier decision, and must specify the

error of law or fact warranting reconsideration. See 8 C.F.R.

§ 1003.2(b)(1). The Board’s broad exercise of discretion will

be reversed only if its decision “lacked a rational explanation,

departed from established policies, or rested on an

impermissible basis.” Jean, 435 F.3d at 483 (internal quotation

marks and citations omitted). The burden is on the movant to

establish that reconsideration is warranted. INS v. Abudu, 485

U.S. 94, 110 (1988). In order to prevail, a movant must do more

than simply challenge the Board’s consideration of the evidence

and the resulting decision. See Ogundipe v. Mukasey, 541 F.3d

257, 263 (4th Cir. 2008). The movant must point to a specific

error of fact or law in the agency decision. Id.

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A motion to reopen “shall state the new facts that

will be proven at a hearing to be held if the motion is granted

and shall be supported by affidavits or other evidentiary

material.” 8 C.F.R. § 1003.2(c)(1). Further, the motion “shall

not be granted unless it appears to the Board that evidence

sought to be offered is material and was not available and could

not have been discovered or presented at the former hearing.”

Id.

An alien may file one motion to reopen within ninety

days of the entry of a final order of removal. 8 U.S.C.

§ 1229a(c)(7)(A), (C) (2006); 8 C.F.R. § 1003.2(c)(2). The time

and number limits do not apply if the basis for the motion is to

seek asylum or withholding of removal based on changed country

conditions, “if such evidence is material and was not available

and would not have been discovered or presented at the previous

proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.

§ 1003.2(c)(3)(ii).

The Board denied reconsideration because Obomighie did

not show that there was an error of law or fact in the earlier

decision warranting reconsideration. The Board further found

that Obomighie’s new evidence did not show a change in country

conditions that warranted reopening. The Board also denied

Obomighie’s claim that he received ineffective assistance of

counsel during the proceedings involving the motion to reopen

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because he did not fulfill the requirements under In re Lozada,

19 I. & N. Dec. 637 (BIA 1988).

Under 8 U.S.C. § 1252(a)(2)(C) (2006), this court

lacks jurisdiction, except as provided in 8 U.S.C.

§ 1252(a)(2)(D) (2006), to review the final order of removal of

an alien convicted of certain enumerated crimes, including an

aggravated felony. This court retains jurisdiction “to review

factual determinations that trigger the jurisdiction-stripping

provision, such as whether [Obomighie] [i]s an alien and whether

[]he has been convicted of an aggravated felony.” Ramtulla v.

Ashcroft, 301 F.3d 202, 203 (4th Cir. 2002). If the court is

able to confirm these two factual determinations, then, under 8

U.S.C. § 1252(a)(2)(C), (D), the Court can only consider

“constitutional claims or questions of law.” See Mbea v.

Gonzales, 482 F.3d 276, 278 n.1 (4th Cir. 2007).

Obomighie was found removable for having two

aggravated felony convictions and two convictions for crimes of

moral turpitude. See 8 U.S.C. § 1227(a)(2)(A)(ii), (iii)

(2006). Because Obomighie was found removable as a result of

being convicted of an aggravated felony, this court does not

have jurisdiction over the Board’s November 11, 2011 order, see

Hanan v. Mukasey, 519 F.3d 760, 763 (8th Cir. 2008); Martinez-

Maldonado v. Gonzales, 437 F.3d 639, 683 (7th Cir. 2006), except

to review the factual determinations that trigger the

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jurisdiction stripping provision. Obomighie concedes he is an

alien. Our jurisdiction to review the factual determination

that Obomighie was convicted of an aggravated felony is

proscribed by 8 U.S.C. § 1252(d)(1) (2006), under which this

Court may review a final order of removal only if the alien has

exhausted all available remedies. See Massis v. Mukasey, 549

F.3d 631, 638-40 (4th Cir. 2008). Because Obomighie never

properly exhausted his claims that his convictions for fraud and

for assault were not aggravated felonies, we are without

jurisdiction to review those findings. Thus, this court is left

only with the jurisdiction to review constitutional claims or

questions of law pertaining to the November 11, 2011 order.

In his pro se informal brief and his subsequent

filings, Obomighie has raised numerous issues, but only a few

pertaining to the November 11, 2011 order, none of which concern

constitutional claims or questions of law.

Accordingly, because Obomighie was removable for

having been convicted of an aggravated felony, we are without

jurisdiction to review the Board’s November 11, 2011 order.

While we grant leave to proceed in forma pauperis, we dismiss

the petition for review. We also deny Obomighie’s motion for

appointment of counsel and grant his motion to strike or

withdraw his initial informal brief and file a corrected brief.

We dispense with oral argument because the facts and legal

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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

PETITION DISMISSED