Ibrahim Oduk v. Loretta Lynch , 638 F. App'x 405 ( 2016 )

Case: 15-60348 Document: 00513422314 Page: 1 Date Filed: 03/14/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-60348 FILED
Summary Calendar March 14, 2016
Lyle W. Cayce
Clerk
IBRAHIM LANGO ODUK,
Petitioner
v.
LORETTA LYNCH, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A097 683 021
Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
Ibrahim Lango Oduk, a native and citizen of Kenya, petitions this court
for review of the decision of the Board of Immigration Appeals (BIA) dismissing
his appeal of the order of an immigration judge (IJ) denying his application for
asylum, withholding of removal, and protection under the Convention Against
Torture (CAT). Oduk contends that the BIA erred when it determined that he
abandoned his challenge to the IJ’s denial of his claim for 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-60348 Document: 00513422314 Page: 2 Date Filed: 03/14/2016
No. 15-60348
He argues that he sufficiently presented the issue to the BIA by raising it in
his notice of appeal. Oduk further contends that the CAT claim should have
been considered separately from his other claims because the agency’s adverse
credibility determination is not dispositive of his CAT claim.
Judicial review of a final removal order is available only where the alien
has exhausted all administrative remedies of right. 8 U.S.C. § 1252(d)(1).
Because the exhaustion requirement is statutorily mandated, an alien’s failure
to exhaust an issue before the BIA is a jurisdictional bar to this court’s
consideration of the issue. Wang v. Ashcroft, 260 F.3d 448, 452 (5th Cir. 2001).
“An alien fails to exhaust his administrative remedies with respect to an issue
when the issue is not raised in the first instance before the BIA—either on
direct appeal or in a motion to reopen.” Id. at 452-53. When an alien elects to
submit a brief to the BIA, “that brief becomes the operative document through
which any issues that a petitioner wishes to have considered must be raised.”
Claudio v. Holder, 601 F.3d 316, 319 (5th Cir. 2010).
Oduk concedes that he did not raise his CAT claim in his appellate brief
before the BIA. Oduk also failed to raise in his brief to the BIA his contention
that the IJ erred by failing to separately analyze his CAT claim. Therefore,
the only issues Oduk raises in his petition for review are unexhausted, and this
court lacks jurisdiction to consider them. See Claudio, 601 F.3d at 319; Wang,
260 F.3d at 452. Accordingly, Oduk’s petition for review is DISMISSED for
lack of jurisdiction.
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