Ndeye Thiam v. Jefferson Sessions, III

Case: 16-60014 Document: 00514233950 Page: 1 Date Filed: 11/13/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-60014 FILED
Summary Calendar November 13, 2017
Lyle W. Cayce
Clerk
NDEYE MAGATTE THIAM,
Petitioner
v.
JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A079 011 230
Before JONES, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Ndeye Magatte Thiam, a native and citizen of Senegal, petitions for
review of the denial of a motion to reopen her removal proceedings. In the
timely motion, Thiam claimed eligibility for special rule cancellation of removal
based on allegations that she had been a battered spouse during her former
marriage to a United States citizen. The Board of Immigration Appeals (BIA),
in denying the motion, concluded that Thiam had failed to show that the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-60014 Document: 00514233950 Page: 2 Date Filed: 11/13/2017
No. 16-60014
evidence supporting her abuse claim was previously unavailable and could not
have been discovered or presented during her earlier removal proceedings.
Additionally, the BIA concluded that Thiam had not established prima facie
eligibility for any form of relief.
First, Thiam argues in this court that her prior attorneys rendered
ineffective assistance during her immigration proceedings. We lack
jurisdiction to consider these claims due to Thiam’s failure to exhaust her
administrative remedies. See Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th Cir.
2001); 8 U.S.C. § 1252(d)(1); see also Hernandez-Ortez v. Holder, 741 F.3d 644,
647-48 (5th Cir. 2014). For the same reason, we lack jurisdiction to consider
assertions that the immigration judge failed to inform Thiam that she could
have raised the spousal abuse claim during her removal proceedings. See
§ 1252(d)(1); Kane v. Holder, 581 F.3d 231, 236-38 (5th Cir. 2009).
Next, as to the denial of her motion to reopen, Thiam argues that the
BIA made conclusory statements in its orders, failed to explain its decision
adequately, failed to explain why she should have raised her abuse claim
earlier, ignored the fact that she was abused by her former husband and was
the victim of his bigamy, failed to consider that she was a barely-literate person
who did not understand and was never advised that the abuse claim could have
been raised during the removal proceedings, failed to consider all of her
evidence, and carelessly reviewed the record. Further, she contends that the
BIA violated her due process rights by carelessly reading the record and
making conclusory statements without a full discussion of her case.
Because the alleged instances of spousal abuse occurred between 2002
and 2004, at least six years before the initiation of Thiam’s removal
proceedings in 2010, the BIA did not act capriciously, irrationally, or
arbitrarily, or otherwise abuse its discretion, in denying Thiam’s motion. See
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No. 16-60014
8 C.F.R. § 1003.2(c)(1); Zhao v. Gonzales, 404 F.3d 295, 303-04 (5th Cir. 2005).
The BIA’s reasons, including its citation to the applicable regulation and facts,
provided an adequate basis for our review. See Hernandez-Cordero v. USINS,
819 F.2d 558, 563 (5th Cir. 1987) (en banc). There is “little else” that the BIA
could have said to explain its determination regarding the evidence of Thiam’s
abuse claim and her failure to make the requisite showing under § 1003.2(c)(1).
Id. Furthermore, the BIA corrected its initial findings regarding whether
Thiam had timely moved to reopen and submitted a copy of her cancellation of
removal application.
Finally, it is unavailing for Thiam to argue that she should be excused
from failing to present the abuse claim earlier due to her lack of familiarity
with the law. Even if we were to assume arguendo that such an argument
could have merit, she was represented by counsel during her immigration
proceedings. Cf. Saahir v. Collins, 956 F.2d 115, 118-19 (5th Cir. 1992) (pro se
habeas petitioner denied relief despite claim of lack of legal knowledge);
Crutcher v. Aetna Life Ins. Co., 746 F.2d 1076, 1081-84 (5th Cir. 1984)
(represented party in civil litigation).
Accordingly, Thiam’s petition for review is DENIED in part and
DISMISSED in part for lack of jurisdiction.
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