UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1071
KESTER IGEMHOKHAI OBOMIGHIE,
Petitioner,
v.
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Petition dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
5
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
PETITION DISMISSED
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