Onoriode v. Keisler
Onoriode v. Keisler
Opinion of the Court
SUMMARY ORDER
Petitioner Erijo Onoriode, a native and citizen of Nigeria, seeks review of a March 26, 2008 order of the BIA affirming the June 11, 2001 decision of Immigration Judge (“IJ”) Philip J. Montante, Jr., denying petitioner’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In Re Erijo Onoriode, No. A77 730 493 (B.I.A. Mar. 26, 2003), aff'g No. A77 730 493 (Immig. Ct. Buffalo June 11, 2001). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
Where, as here, the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). This Court reviews the agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). However, this Court will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir. 2005).
In this case, the IJ denied Onoriode’s two asylum claims, one based on her involvement in the Itsekiri Youth Movement and the other based on her refusal to
We dismiss the petition insofar as it challenges the denial of asylum based on persecution in the form of female genital mutilation (“FGM”) for failure to exhaust. This Court may review only those categories for relief that an applicant exhausts before the administrative agency. 8 U.S.C. § 1252(d)(1); see Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 118 (2d Cir. 2007) (amending Lin Zhong v. U.S. Dep’t of Justice, 461 F.3d 101 (2d Cir. 2006)). Although the statute bars this Court from considering categories of relief that were not raised at the agency level, a petitioner’s failure to argue particular issues before the BIA does not, as a statutory matter, bar this Court’s jurisdiction to consider those issues when raised before this Court. Id. at 121-22. The Court concluded that even though it is not statutorily restricted from reviewing unexhausted issues, pursuant to the judicially-imposed, and mandatory, doctrine of issue exhaustion, the Court will generally not entertain unexhausted issues. Id. at 107 n. 1, 122-23. Here, Onoriode failed to present any testimony regarding her FGM procedure before the IJ, and the IJ did not address that claim. She did not argue in her brief to the BIA that the IJ erred in failing to address her FGM claim. Thus, we dismiss the petition for failure to exhaust as it relates to her FGM claim. See id. at 121-22.
Lastly, we decline to consider Onoriode’s withholding of removal and CAT claims because she failed to raise them in her brief to this Court. See Jian Wen Wang v. BCIS, 437 F.3d 276, 278 (2d Cir. 2006).
For the foregoing reasons, the petition for review is DENIED in part and DISMISSED in part. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1).
Reference
- Full Case Name
- Erijo ONORIODE v. Peter D. KEISLER, United States Attorney General
- Status
- Published