Kester Obomighie v. Eric Holder, Jr. , 501 F. App'x 262 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2167
KESTER IGEMHOKHAI OBOMIGHIE,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: November 9, 2012 Decided: December 21, 2012
Before MOTZ, KING, and DIAZ, Circuit Judges.
Petition dismissed by unpublished per curiam opinion.
Kester Igemhokhai Obomighie, Petitioner Pro Se. Daniel Eric
Goldman, Senior Litigation Counsel, Andrew B. Insenga, 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Unpublished opinions are not binding precedent in this circuit.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:
Kester Igemhokhai Obomighie, a native and citizen of
Nigeria, petitions for review of an order of the Board of
Immigration Appeals (“Board”) denying his motion to reopen. We
deny the petition for review.
Under 8 U.S.C. § 1252(a)(2)(C) (2006), this court
lacks jurisdiction, except as provided in 8 U.S.C.
§ 1252(a)(2)(D) (2006), to review the final order of removal of
an alien convicted of certain enumerated crimes, including an
aggravated felony. This court retains jurisdiction “to review
factual determinations that trigger the jurisdiction-stripping
provision, such as whether [Obomighie] [i]s an alien and whether
[ ]he has been convicted of an aggravated felony.” Ramtulla v.
Ashcroft, 301 F.3d 202, 203 (4th Cir. 2002). If the court is
able to confirm these two factual determinations, then, under 8
U.S.C. § 1252(a)(2)(C), (D), the court can only consider
“constitutional claims or questions of law.” Mbea v. Gonzales,
482 F.3d 276, 278 n.1 (4th Cir. 2007).
Obomighie was found removable for having two
aggravated felony convictions and two convictions for crimes of
moral turpitude. See 8 U.S.C. § 1227(a)(2)(A)(ii), (iii)
(2006). Because Obomighie was found removable as a result of
being convicted of an aggravated felony, this court does not
have jurisdiction over the Board’s August 24, 2012 order, see
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Hanan v. Mukasey, 519 F.3d 760, 763 (8th Cir. 2008); Martinez–
Maldonado v. Gonzales, 437 F.3d 639, 683 (7th Cir. 2006), except
to review the factual determinations that trigger the
jurisdiction-stripping provision. Obomighie concedes he is an
alien. Our jurisdiction to review the factual determination
that Obomighie was convicted of an aggravated felony is
proscribed by 8 U.S.C. § 1252(d)(1) (2006), under which this
court may review a final order of removal only if the alien has
exhausted all available remedies. Massis v. Mukasey, 549 F.3d
631, 638–40 (4th Cir. 2008). Because Obomighie never properly
exhausted his claim that his convictions for fraud and for
assault were not aggravated felonies, we are without
jurisdiction to review those findings. Thus, this court is left
only with the jurisdiction to review constitutional claims or
questions of law pertaining to the August 24, 2012 order.
Obomighie fails to raise a constitutional claim or a
question of law concerning the Board’s denial of his motion to
reopen. The issue was one of new evidence that could support
Obomighie’s claim that conditions had changed in Nigeria to such
an extent that he now had a well-founded fear of persecution.
However, the Board found that he failed to submit evidence that
was material to his claim for asylum or related relief.
Accordingly, because Obomighie was found removable for
having been convicted of an aggravated felony, this court is
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without jurisdiction to review the Board’s order. We dismiss
the petition for review. We also deny as moot Obomighie’s
motion to stay removal. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
PETITION DISMISSED
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