Mutombo v. Holder

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1196
ANNY NGOIE MUTOMBO; JOSUE NSENDA MUTOMBO; DEBORA KAMANJI
MUTOMBO,
Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: October 16, 2009 Decided: October 27, 2009
Before WILKINSON, MOTZ, and AGEE, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Ana T. Jacobs, ANA T. JACOBS & ASSOC. P.C., Washington, D.C.,
for Petitioners. Tony West, Assistant Attorney General, Thomas
B. Fatouros, Senior Litigation Counsel, Annette M. Wietecha,
Office of Immigration Litigation, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anny Ngoie Mutombo, a native and citizen of the
Democratic Republic of the Congo, petitions for review of an
order of the Board of Immigration Appeals (“Board”) dismissing
her appeal from the immigration judge’s order denying her
application for asylum because it was found she firmly resettled
in South Africa. * We deny the petition for review.
An alien may not be granted asylum if the Attorney
General determines that “the alien was firmly resettled in
another country prior to arriving in the United States.” 8
U.S.C. § 1158(b)(2)(A)(vi) (2006). By regulation, “[a]n alien
is considered to be firmly resettled if, prior to arrival in the
United States, he or she entered into another country with, or
while in that country received, an offer of permanent resident
status, citizenship, or some other type of permanent
resettlement.” 8 C.F.R. § 1208.15 (2009). An alien who is
found to have firmly resettled in another country may still
obtain asylum in the United States, provided she can show either
that she was in the country only as long as was necessary to
arrange onward travel, see 8 C.F.R. § 1208.15(a), or that her
conditions of residency in the country were substantially and
*
Mutombo’s asylum application was filed on behalf of her
and her two children.
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consciously restricted by the governing authority of the
country. See 8 C.F.R. § 1208.15(b). Once the Government
establishes firm resettlement, the burden shifts to the alien to
show, by a preponderance of the evidence, that she had not
resettled. Mussie v. INS, 172 F.3d 329, 332 (4th Cir. 1999).
We review a finding of firm resettlement for substantial
evidence. Id. at 330.
Beginning with the fact that the South African
government offered Mutombo permanent resident status and that
she had lived in the country for five years, got married, gave
birth to two children and was employed, substantial evidence
supports the finding she had firmly resettled in South Africa.
Furthermore, we find Mutombo failed to show that restrictive
conditions were present which rebut the finding of firm
resettlement.
We also find Mutombo did not exhaust her claim that
she should have received asylum from South Africa. Because she
failed to raise the issue before the Board, the court lacks
jurisdiction to review due to failure to exhaust “all
administrative remedies.” 8 U.S.C. § 1252(d)(1) (2006); see
also Asika v. Ashcroft, 362 F.3d 264, 267 n.3 (4th Cir. 2004).
Accordingly, we deny the petition for review. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
PETITION DENIED
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