Kester Obomighie v. Eric Holder, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to proceed in forma pauperis (FRAP 24) [998766610-2]; denying Motion to appoint/assign counsel [998766615-2]; granting Motion to strike [998807768-2]; granting Motion to amend/correct [998807768-3] Originating case number: A029-697-189 Copies to all parties and the district court/agency. [998851745]. Mailed to: Kester Igemhokhai Obomighie. [12-1071]

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UNPUBLISHED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Petition dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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.
§ 1003.2(b)(1).

See 8 C.F.R.

The Board’s broad exercise of discretion will

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

from

established

impermissible basis.”

policies,

or

on

an

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

marks and citations omitted).

The burden is on the movant to

establish that reconsideration is warranted.
U.S. 94, 110 (1988).

rested

INS v. Abudu, 485

In order to prevail, a movant must do more

than simply challenge the Board’s consideration of the evidence
and the resulting decision.
257, 263 (4th Cir. 2008).

See Ogundipe v. Mukasey, 541 F.3d
The movant must point to a specific

error of fact or law in the agency decision.
2

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

material.”

supported

by

affidavits

8 C.F.R. § 1003.2(c)(1).

or

other

evidentiary

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

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

U.S.C.

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
Obomighie’s

that

warranted

claim

that

he

reopening.
received

The

Board

ineffective

also

denied

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
lacks

8

U.S.C.

jurisdiction,

§

1252(a)(2)(C)

except

as

(2006),

provided

this

in

8

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

Ramtulla v.

If the court is

able to confirm these two factual determinations, then, under 8
U.S.C.

§

1252(a)(2)(C),

“constitutional

claims

(D),

or

the

questions

Court
of

can

only

law.”

See

consider
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
(2006).

turpitude.

See

8

U.S.C.

§ 1227(a)(2)(A)(ii),

(iii)

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

review

the

factual

determinations
4

that

trigger

the

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jurisdiction stripping provision.
alien.
that

Obomighie concedes he is an

Our jurisdiction to review the factual determination
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.
F.3d

631,

638-40

(4th

Cir.

See Massis v. Mukasey, 549

2008).

Because

Obomighie

never

properly exhausted his claims that his convictions for fraud and
for

assault

were

not

aggravated

felonies,

jurisdiction to review those findings.

we

are

without

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.
appointment

of

counsel

We also deny Obomighie’s motion for
and

grant

his

motion

to

strike

or

withdraw his initial informal brief and file a corrected brief.
We

dispense

with

oral

argument
5

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

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