Omari v. Holder

Decision Date04 March 2009
Docket NumberNo. 07-60814.,07-60814.
Citation562 F.3d 314
PartiesJohn Nyakundi OMARI, also known as Nyakundi John Omari, Petitioner, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.
CourtU.S. Court of Appeals — Fifth Circuit

Jennifer A. DePalma (argued), O'Melveny & Myers, Menlo Park, CA, for Omari.

Leslie M. McKay (argued), John Clifford Cunningham, Thomas Ward Hussey, Holly Michele Smith, U.S. Dept. of Justice, OIL, Washington, DC, Paul Hunker, U.S. INS, Dallas, TX, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before GARWOOD, DENNIS and PRADO, Circuit Judges.

PRADO, Circuit Judge:

An Immigration Judge found Petitioner John Nyakundi Omari removable, but granted him a discretionary cancellation of removal. The Government appealed this decision to the Board of Immigration Appeals, which reversed the IJ and ordered Omari removed to Kenya. Omari now petitions this court to vacate the BIA's order on four separate grounds. But Omari has never properly presented any of the issues he now raises to the BIA, despite the opportunity to do so. As 8 U.S.C. § 1252(d) requires that a petitioner exhaust all administrative remedies available as of right for this court to have jurisdiction over an issue, Omari's failure to raise these issues before the BIA jurisdictionally bars us from addressing them.

Ordinarily, such a failure to raise an issue before the BIA would end our inquiry. But Omari makes two arguments that warrant consideration. First, he asserts that he effectively — if not explicitly — raised all pertinent issues before the BIA, such that the BIA had adequate notice to satisfy exhaustion. Second, Omari alternatively asks that we excuse his failure to exhaust. We find both arguments unavailing; allowance of "effective" exhaustion runs contrary to the purposes of § 1252(d), and, at least after the Supreme Court's decision in Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 2364-66, 168 L.Ed.2d 96 (2007), we do not have the authority to excuse Omari's failure to comply with a statutory jurisdictional mandate.

We therefore dismiss Omari's petition for lack of jurisdiction. As our decision turns on a procedural stumble committed in his second appeal to the BIA, we set forth the history of Omari's case in some detail.

I. FACTUAL AND PROCEDURAL BACKGROUND

Omari came to the United States as a student in 1986 and soon became a lawful permanent resident. He later pleaded guilty to two unrelated criminal offenses: a Minnesota misdemeanor charge of fifth-degree assault (the "Minnesota assault conviction") and a federal charge of conspiracy to transport stolen goods in interstate commerce (the "federal conspiracy conviction"). The Government began removal proceedings against Omari and issued him a Notice to Appear, eventually asserting three separate grounds for removal: (1) his federal conspiracy conviction was an aggravated felony, see 8 U.S.C. § 1227(a)(2)(A)(iii); (2) his Minnesota assault conviction was a crime of domestic violence, see 8 U.S.C. § 1227(a)(2)(E)(i); and (3) both his Minnesota assault and federal conspiracy convictions were crimes involving moral turpitude, see 8 U.S.C. § 1227(a)(2)(A)(ii). Omari contested his removability and also applied for cancellation of removal. See 8 U.S.C. § 1229b(a). An IJ found Omari removable on the ground that his federal conspiracy conviction constituted an aggravated felony and did not address the other grounds for removal or Omari's request for cancellation. The BIA later affirmed the IJ's decision.

Omari petitioned this court to review the BIA's order. Finding that the record did not establish that Omari had committed an aggravated felony, we vacated the BIA's order and remanded the case for further proceedings. See Omari v. Gonzales, 419 F.3d 303, 309-10 (5th Cir.2005) (Omari I).

On remand, the IJ still found Omari removable but ultimately determined that he merited cancellation of removal. The IJ first concluded that, despite the additional evidence the Government had introduced on remand, Omari still had not been convicted of an aggravated felony. The IJ instead found Omari removable as an alien convicted of a crime of domestic violence and, alternatively, as an alien convicted of two or more crimes involving moral turpitude. Turning to Omari's application for cancellation of removal, however, the IJ weighed the equities and concluded that Omari merited cancellation.

The Government appealed the IJ's decision to the BIA, disputing the IJ's determination that Omari had not been convicted of an aggravated felony as well as the IJ's discretionary grant of cancellation. Omari did not file an appeal from the IJ's decision, but he did file a response brief that similarly focused on the aggravated felony and cancellation issues. The BIA agreed with the IJ that Omari had not been convicted of an aggravated felony but reversed the IJ's conclusion that Omari merited cancellation of removal. The BIA determined that the equities did not weigh in Omari's favor and noted a potential child support arrearage of $10,000. The BIA thus vacated the IJ's decision, denied Omari's application for cancellation of removal, and remanded the case to the IJ for entry of an order of removal.

Omari moved the BIA to reconsider its decision. See 8 C.F.R. § 1003.2(b). In his motion for reconsideration, Omari argued, inter alia, that (1) he was not removable because his Minnesota assault conviction was neither a crime of domestic violence nor a crime involving moral turpitude, (2) the BIA had erroneously found him to owe $10,000 in unpaid child support, and (3) the BIA failed to give proper weight to factors meriting discretionary cancellation of removal. The BIA denied this motion. It first noted that Omari had failed to address his Minnesota assault conviction on appeal and could not do so for the first time in a motion for reconsideration. Second, the BIA refused to consider new evidence concerning Omari's child support obligations, noting that a motion for reconsideration was not the proper avenue for addressing new evidence. Third, the BIA concluded that Omari provided no reasons for reversing its determination that he did not merit cancellation. Finally, insofar as Omari's motion could be considered one to reopen based on evidence of his actual child support obligations, see 8 C.F.R. § 1003.2(c), the BIA found that Omari had failed to show that this evidence was previously unavailable or that it demonstrated a reasonable likelihood of success on the merits. The BIA thus ordered Omari removed to Kenya.

Omari now petitions this court to vacate the BIA's order of removal. Omari raises four arguments on appeal: (1) his Minnesota assault conviction is neither a crime of domestic violence nor a crime involving moral turpitude, (2) his federal conspiracy conviction is not a crime involving moral turpitude, (3) the BIA engaged in impermissible factfinding, and (4) the court should remand the case for a determination of whether he is eligible for waiver of removal under 8 U.S.C. § 1182(h).

II. JURISDICTION
A. Actual Exhaustion

As always, we have jurisdiction to determine our own jurisdiction. Omari I, 419 F.3d at 306. And although we generally have jurisdiction to review final orders of removal, 8 U.S.C. § 1252(a)(1), under 8 U.S.C. § 1252(d), we "may review a final order of removal only if ... the alien has exhausted all administrative remedies available to the alien as of right." Petitioners fail to exhaust their administrative remedies as to an issue if they do not first raise the issue before the BIA, either on direct appeal or in a motion to reopen. See Heaven v. Gonzales, 473 F.3d 167, 177 (5th Cir.2006); Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th Cir.2001). This exhaustion requirement applies to all issues for which an administrative remedy is available to a petitioner "as of right." Arce-Vences v. Mukasey, 512 F.3d 167, 172 (5th Cir.2007). A remedy is available as of right if (1) the petitioner could have argued the claim before the BIA, and (2) the BIA has adequate mechanisms to address and remedy such a claim. See Toledo-Hernandez v. Mukasey, 521 F.3d 332, 334 (5th Cir.2008); Falek v. Gonzales, 475 F.3d 285, 291 (5th Cir.2007). Since exhaustion in this context is a statutory (rather than prudential) mandate, failure to exhaust an issue deprives this court of jurisdiction over that issue. Wang, 260 F.3d at 452; see also Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir.2004) (per curiam).

1. Minnesota Assault Conviction

Omari did not appeal the IJ's determination that his Minnesota assault conviction was a crime of domestic violence and a crime involving moral turpitude. Moreover, Omari did not challenge this determination in his brief before the BIA. His failure to do so is a failure to exhaust, jurisdictionally barring us from addressing the merits.

Granted, Omari did raise the issues regarding his Minnesota assault conviction in his motion for reconsideration, but we find this insufficient to satisfy § 1252(d). "A motion to reconsider challenges the [BIA]'s original decision and alleges that it is defective in some regard." In re O-S-G, 24 I. & N. Dec. 56, 57 (BIA 2006); see also 8 C.F.R. § 1003.2(b)(1) ("A motion to reconsider shall state the reasons for the motion by specifying the errors of fact or law in the prior [BIA] decision ...."). A motion for reconsideration is thus confined to the substance of the BIA's original decision. It is not the proper avenue for raising new issues or arguments, and "[a] motion to reconsider based on a legal argument that could have been raised earlier in the proceedings will be denied." O-S-G, 24 I. & N. Dec. at 58. Instead, the party bringing a motion for reconsideration "must specify the factual and legal issues raised on appeal that were decided in error or overlooked in [the BIA's] initial decision." Id. (emphasis added). In short, an issue raised for the first time in a motion for reconsideration that...

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