Soghe v. Holder , 350 F. App'x 803 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1673
CLARISSE NZAME SOGHE,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: September 24, 2009 Decided: November 9, 2009
Before MOTZ and GREGORY, Circuit Judges, and Damon J. KEITH,
Senior Circuit Judge of the United States Court of Appeals for
the Sixth Circuit, sitting by designation.
Petition denied by unpublished per curiam opinion.
ARGUED: Kim-Bun Thomas Li, LI, LATSEY & GUITERMAN, PLLC,
Washington, D.C., for Petitioner. Brendan Paul Hogan, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
ON BRIEF: Gregory G. Katsas, Assistant Attorney General, Civil
Division, Keith I. McManus, Senior Litigation Counsel, UNITED
STATES DEPARTMENT OF JUSTICE, Office of Immigration Litigation,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Petitioner Clarisse Nzame-Soghe (“Soghe”) asks this Court
to review the Board of Immigration Appeals’ denial of her motion
to reconsider reopening her removal proceedings. We deny the
petition because the Board’s decision did not abuse its
discretion.
I.
Soghe, a Gabon native who holds dual citizenship with Gabon
and the Central African Republic (“CAR”), entered the United
States on an F-1 student visa in April of 1996. She then failed
to report to an English language course in which she was
enrolled. As a result, the Immigration and Naturalization
Service (“INS”) ordered her to show cause why she should not be
deported for having unlawfully overstayed her visa. Removal
proceedings commenced against Soghe on April 13, 2004. On
January 11, 2005, an immigration judge (“IJ”) evaluated Soghe’s
applications for asylum, withholding of removal, and protection
under the Convention Against Torture (“CAT”).
The IJ found that Soghe failed to demonstrate either past
persecution or a well-founded fear of future persecution.
Accordingly, the IJ denied Soghe’s application for asylum. The
IJ also denied petitioner’s request for withholding of removal
and protection under CAT, and ordered her removed to Gabon.
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Soghe unsuccessfully appealed this order to the Board, which
then successively denied her motions to reopen and reconsider
her removal proceedings.
II.
Our jurisdiction over this matter is pursuant to 8 U.S.C.
§ 1252 (2006) and limited to the Board order denying Soghe’s
motion to reconsider. * On January 22, 2008, the Board declined
to reopen its decision dismissing Soghe’s appeal. Soghe had
thirty days from the issuance of that order to timely file a
petition for review. Id. § 1252(b)(1). This she failed to do,
despite having previously requested review of the Board’s
decision to dismiss her appeal. See Soghe v. Gonzales, 210 F.
App’x 312 (4th Cir. 2006) (unpublished). As the thirty-day
deadline is a “strict” jurisdictional mandate, we are barred
from reviewing Soghe’s motion to reopen. See 8 U.S.C.
§ 1252(b)(1); see also Stone v. INS, 514 U.S. 386, 405 (1995).
We therefore review only the Board’s denial of her motion to
reconsider, the petition for which was timely filed on June 12,
2008.
*
Petitioner would not prevail even if we revisited her
motion to reopen, for it was untimely filed. The Board did not
abuse its discretion in denying the motion on that basis. See
Massis v. Mukasey, 549 F.3d 631, 637 (4th Cir. 2008).
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The Board’s denial of Soghe’s motion to reconsider is
reviewed for abuse of discretion. See Ogundipe v. Mukasey, 541
F.3d 257, 263 (4th Cir. 2008). We will reverse the Board only
if it “acted arbitrarily, irrationally, or contrary to law.”
Narine v. Holder, 559 F.3d 246, 249 (4th Cir. 2009).
III.
As the Board’s decision to deny Soghe’s motion to
reconsider was “reasoned,” the Board did not abuse its
discretion. See M.A. v. INS, 899 F.2d 304, 310 (4th Cir. 1990)
(en banc), superseded by statute on other grounds. Soghe, who
bore the “heavy burden” of establishing that reconsideration was
warranted, failed to state the requisite additional legal
arguments, changes in law, or overlooked aspects of the case.
See INS v. Adubu, 485 U.S. 94, 110 (1988). Her motion, which
largely reiterated contentions the Board had already rejected,
“g[ave] the tribunal no reason to change its mind.” Ahmed v.
Ashcroft, 388 F.3d 247, 249 (7th Cir. 2004).
Soghe cited a single factual error in support of her motion
to reconsider: a faulty translation of the French word for
“bandits.” She argued that the word in question was
mistranslated as “thieves.” Soghe then inferred that the
lawless “bandits” were CAR affiliates who had targeted her
family after infiltrating Gabon. Even assuming, arguendo, that
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the distinction between “thieves” and “bandits” is meaningful,
Soghe offered no evidence that the alleged bandits were CAR
agents. She likewise presented no evidence that CAR agents,
rather than Gabonese street thugs, robbed and killed her
brother. As the Board indicated, Soghe therefore failed to meet
the burden she assumed upon filing her motion to reconsider.
Moreover, she failed to establish the changed country conditions
that dispense with the 90-day filing deadline for motions to
reopen. See, e.g., Zheng v. Holder, 562 F.3d 647 (4th Cir.
2009).
IV.
Supreme Court and Fourth Circuit precedent strongly
emphasize that petitioners must pursue administrative remedies
before calling upon this Court. A noncitizen must “raise each
argument to the [Board] before we have jurisdiction to consider
it.” Gandziami-Mickhou v. Gonzales, 445 F.3d 351, 359 n.2 (4th
Cir. 2006) (citing Asika v. Ashcroft, 362 F.3d 264, 267 (4th
Cir. 2004)). “Generally, a[ noncitizen]’s failure to raise an
issue before the [Board] constitutes a waiver of the issue and
precludes review by this court.” Gonahasa v. INS, 181 F.3d 538,
544 (4th Cir. 1999). And where a noncitizen fails to “make [an]
argument in her appeal to the [Board],” the claim is
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“procedurally defaulted.” Li v. Gonzales, 405 F.3d 171, 180 n.
6 (4th Cir. 2005).
Petitioner raises a novel argument nearly ten times over as
many pages in her opening brief. See, e.g., Pet’s Br. at 6, 7,
8, 9, 12, 13, 14, 16, 20. She makes the claim that the Board’s
January 22, 2008 decision denying her motion to reopen mistook
Gabon, rather than CAR, for the locus of the 2003 coup and
Soghe’s father’s arrest. However, the “well established”
doctrine of exhaustion of administrative remedies precludes our
reevaluation of the motion to reopen. Woodford v. Ngo, 548 U.S.
81, 89 (2006). In the instant case, petitioner failed to assert
the above-stated argument on appeal to the Board. She failed to
state it in either her motion to reopen or her motion to
reconsider. It follows that she may not assert it now.
“[U]nder U.S.C. § 1252(d)(1), a[ noncitizen]’s failure to
dispute an issue on appeal to the [Board] . . . bars judicial
review.” Massis, 549 F.3d at 638-40 (surveying circuits in
which lack of exhaustion is a “jurisdictional bar”).
V.
In its decision to deny Soghe’s motion to reconsider, the
Board described her arguments as “either cumulative of [those
made] previous[ly] . . . or unsupported by documentary
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evidence.” We agree, and decline to consider any of the novel
arguments raised in petitioner’s opening brief.
PETITION DENIED
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