Ernest Obie v. Eric Holder, Jr. , 447 F. App'x 613 ( 2011 )

Case: 11-60009 Document: 00511649855 Page: 1 Date Filed: 10/31/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 31, 2011
No. 11-60009
Summary Calendar Lyle W. Cayce
Clerk
ERNEST MAHAKWE OBIE,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A017 136 382
Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
Nigerian citizen Ernest Mahakwe Obie has filed a petition for review of
the Board of Immigration Appeals’ (BIA) decision sustaining in part and
dismissing in part his appeal of the Immigration Judge’s (IJ) denial his
applications for a waiver of inadmissibility and relief based on asylum,
withholding of removal, and the Convention Against Torture (CAT). Obie
disputes only the denial of a waiver of inadmissibility and relief under the CAT.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 11-60009 Document: 00511649855 Page: 2 Date Filed: 10/31/2011
No. 11-60009
Thus, he has waived any challenges to the denial of other forms of relief from
removal. See Calderon-Ontiveros v. INS, 809 F.2d 1050, 1052 (5th Cir. 1986).
Obie argues that the BIA violated the doctrine of res judicata in deciding
that his 1993 Texas conviction for delivery of heroin could be considered in his
instant immigration proceedings for determining his eligibility for relief from
removal, given that he was granted a waiver regarding that conviction in 1994
pursuant to former § 212(c) of the Immigration and Nationality Act. A court
may review a final order of removal only if “the alien has exhausted all
administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1).
Failure to exhaust an issue before the BIA creates a jurisdictional bar. Omari
v. Holder, 562 F.3d 314, 318-19 (5th Cir. 2009). A petitioner must “fairly present
an issue to the BIA to satisfy § 1252(d)’s exhaustion requirement.” Claudio v.
Holder, 601 F.3d 316, 318 (5th Cir. 2010) (internal quotation marks and citation
omitted). “[W]here the BIA’s decision itself results in a new issue and the BIA
has an available and adequate means for addressing that issue, a party must
first bring it to the BIA’s attention through a motion for reconsideration.”
Omari, 562 F.3d at 320. Obie did not raise the issue of res judicata before the
BIA. Accordingly, the issue of res judicata is unexhausted, and we lack
jurisdiction to consider it. See id. at 319-22; Heaven v. Gonzales, 473 F.3d 167,
177 (5th Cir. 2006).
The contention that the BIA erred in upholding the IJ’s denial of relief
under the CAT is supported only by conclusory statements that raise no dispute
as to the BIA’s determination that Obie failed to demonstrate the requisite
government acquiescence to any torture that he might experience if returned to
Nigeria. Thus, Obie has failed to adequately brief the issue, and his conclusory
challenge to the denial of relief under the CAT is deemed abandoned. See
Garrido-Morato v. Gonzales, 485 F.3d 319, 322 n.1 (5th Cir. 2007); Soadjede v.
Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
The petition for review is DISMISSED.
2