Friday Itie v. Eric Holder, Jr.
UNPUBLISHED OPINION FILED. [10-60704 Affirmed in Part and Dismissed in Part] Judge: WG , Judge: WED , Judge: PRO Mandate pull date is 08/29/2011 [10-60704]
Date Filed: 07/07/2011
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
July 7, 2011
Lyle W. Cayce
FRIDAY EMIKO OYIBO ITIE,
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A-028-554-634
Before GARWOOD, DAVIS and OWEN, Circuit Judges.
Friday Emiko Oyibo Itie is a native and citizen of Nigeria. Itie petitions
this court to review the decision of the Board of Immigration Appeals (BIA)
affirming the immigration judge’s (IJ) decision denying his May 2008 motion
to reopen his 1994 deportation proceedings. This court reviews the denial of a
motion to reopen “under a highly deferential abuse-of-discretion standard.”
Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009).
For the first time before this court, Itie argues that Winston Udeh was
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 R. 47.5, the court has determined that this opinion should not be published and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.
Date Filed: 07/07/2011
not his “counsel of record” during the 1994 deportation proceedings. He
asserts “that the attorney-client relationship between Mr. Udeh and [himself]
ended when the rescission matter was referred to the Immigration Court.” As
such, Itie contends that he cannot be charged with notice of the deportation
proceedings based on the service of the order to show cause (OSC) to Winston
Udeh. Because Itie failed to exhaust his administrative remedies as to this
particular argument, this court lacks jurisdiction to consider it. See Wang v.
Ashcroft, 260 F.3d 448, 452-53 (5th Cir. 2001).
In a footnote, Itie contends that the BIA did not address his argument
“that even if Udeh were his ‘counsel’ for notice purposes, the OSC never
identified the article number for the certified mail receipt.” He asserts that
“[t]he mere fact that [his] certified mail receipt number was sequential to the
one DHS produced as having been served on Udeh does not dispositively show
that Udeh received an OSC because the number was not referenced on the
OSC.” Itie’s argument is not supported by the record.
The BIA did address the argument, finding that the documents in the
record supported the IJ’s finding that Itie’s counsel was served with a copy of
the OSC. The BIA further found the record supported the IJ’s finding that
several notices of the deportation hearing were mailed by certified mail to
Itie’s last known address and that this “create[d] a strong presumption of
effective delivery.” The BIA’s determination that Itie failed to overcome this
presumption of delivery is supported by substantial evidence. See Maknojiya
v. Gonzales, 432 F.3d 588, 589 (5th Cir. 2005). As such, the BIA did not abuse
its discretion in denying Itie’s motion to reopen. See Gomez-Palacios, 560
F.3d at 358. Itie’s petition is therefore DENIED in part and DISMISSED in
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