Wilson Ashu v. Loretta Lynch , 667 F. App'x 478 ( 2016 )

Case: 14-60904 Document: 00513588954 Page: 1 Date Filed: 07/12/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-60904
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
July 12, 2016
WILSON EKANYIE ASHU,
Lyle W. Cayce
Clerk
Petitioner
v.
LORETTA LYNCH, U. S. ATTORNEY GENERAL,
Respondent
Petitions for Review of an Order of the
Board of Immigration Appeals
BIA No. A086 955 811
Before DAVIS, JONES and GRAVES, Circuit Judges.
PER CURIAM: *
Wilson Ekanyie Ashu, a native and citizen of Cameroon, applied for
withholding of removal and relief under the Convention Against Torture
(CAT). The immigration judge (IJ) denied relief, finding Ashu incredible, and
the BIA agreed, dismissing his appeal. Ashu did not file a petition for review
of the dismissal, but he now petitions this court for review of the BIA’s later
orders denying reconsideration and denying his motion to reopen his
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 14-60904
immigration proceedings. We review both orders for abuse of discretion. See
Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005).
Regarding the motion to reconsider, Ashu does not explain how the BIA’s
order was arbitrary, capricious, or irrational or was based on a legal error or
was an unexplained departure from its regulations or policies, and thus he has
not demonstrated that the BIA abused its discretion. See Barrios-Cantarero v.
Holder, 772 F.3d 1019, 1021 (5th Cir. 2014). Instead, he takes issue with the
IJ and the BIA’s credibility determinations and the decision to deny
withholding of removal and CAT relief. However, his petition for review of the
denial of the motion to reconsider was insufficient to preserve challenges to the
BIA’s dismissal of the appeal. See Guevara v. Gonzales, 450 F.3d 173, 173 (5th
Cir. 2006) (“[T]he BIA’s denial of an appeal and its denial of a motion to
reconsider are two separate final orders, each of which require their own
petitions for review.” (internal quotation marks and citation omitted)). By
raising issues addressed in the BIA’s underlying dismissal order, he is
attempting to collaterally attack that order, which he may not do. See id. at
176.
Ashu argues that the BIA should have granted his untimely motion to
reopen based on changed circumstances in Cameroon, specifically, the murder
of his father. However, he does not identify the perpetrators or provide a
motive for the killing, and so he has not demonstrated how this tragic event
constitutes materially changed circumstances in Cameroon warranting the
reopening of his immigration proceedings. See 8 C.F.R. § 1003.2(c)(ii); cf.
Panjwani v. Gonzales, 401 F.3d 626, 632-33 (5th Cir. 2005) (determining that
the BIA did not abuse its discretion in determining that evidence of a bombing
by an unspecified group near the alien’s family home did not constitute
changed circumstances). Moreover, Ashu has not explained how he
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No. 14-60904
established prima facie eligibility for asylum or withholding of removal
because he does not allege that his father’s killing had any connection to Ashu’s
race, religion, nationality, political opinion, or membership in a social group,
see Orellana-Monson v. Holder, 685 F.3d 511, 518 (5th Cir. 2012), nor does he
say how the fact of the murder would establish that he would be tortured if he
returned to Cameroon, which would support an application for CAT relief, see
Garcia v. Holder, 756 F.3d 885, 891 (5th Cir. 2014). Accordingly, he has not
demonstrated that the BIA abused its discretion in denying the motion to
reopen. See Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009). To
the extent that Ashu contends that his case presents exceptional
circumstances warranting the BIA’s use of its authority to reopen proceedings
sua sponte, see § 1003.2(a), we lack jurisdiction to review a challenge to the
BIA’s entirely discretionary decision whether to exercise this authority, see
Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248-50 (5th Cir. 2004).
Ashu’s petitions for review are DENIED.
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