                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                           F I L E D
                  UNITED STATES COURT OF APPEALS             May 22, 2003
                       For the Fifth Circuit
                                                       Charles R. Fulbruge III
                           Nos. 01-60184                       Clerk



                       NASIRU UBA ALHADJI,

                                                       Petitioner,



                              VERSUS


                          JOHN ASHCROFT,
                  UNITED STATES ATTORNEY GENERAL

                                                       Respondent.




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

                      (INS No. A71-876-298)

Before BENAVIDES and DENNIS, Circuit Judges, and WALTER*,
District Judge.

DENNIS, Circuit Judge:**

     Petitioner Nasiru Uba Alhadji requests review of two Board of

Immigration Appeals (“BIA”) decisions ordering his deportation. He


     *
      District Judge of the Western District of Louisiana, sitting
by designation.
     **
      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this opinion should not be published and is not precedent except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.



                                 1
seeks to remain in the United States because he is now married to

a U.S. citizen and because he is eligible for asylum.                 For the

following reasons, we DENY the petitioner’s request for relief.

                              I.     Background

     Alhadji, a native of Cameroon, arrived in the United States on

January 15, 1994, with a visa granting him permission to remain in

the United States until July 15, 1994.             After staying past this

date, he was placed in deportation proceedings for being in the

United States without authorization.               In hearings before the

Immigration Judge (“IJ”), Alhadji admitted that he was deportable

because he lacked authorization to remain in the United States, but

requested political asylum, or alternatively, to be able to depart

voluntarily.     On March 2, 1995, the IJ denied his request for

asylum, but allowed voluntary departure.           Alhadji timely appealed

this decision to the BIA.

     On September 13, 1997, while his BIA appeal was still pending,

Alhadji married Pamsie Willis, a native-born U.S. citizen. Because

they were now married, Alhadji and his wife sought a change in

Alhadji’s status from alien to permanent resident.                  To change

status based on marriage to a U.S. citizen, the alien and his wife

must file certain forms.            An alien seeking permanent resident

status   must   file   an   I-485    Application    to   Register   Permanent

Residence or Adjust Status.         In addition, the U.S. citizen to whom

the alien is married must file a I-130 Petition for Alien Relative



                                       2
form to establish the marital relationship.

     The Alhadjis, then living in Toledo, Ohio, filed the required

I-485 and I-130 forms with the Cleveland, Ohio INS office on

October 15, 1997.     But because the BIA appeal was still pending,

INS regulations required that the I-485 form be submitted to the

BIA, not the regional INS office.        On January 13, 2001, the

Cleveland office informed Alhadji that his I-485 application was

denied for lack of jurisdiction.      But the INS did approve his

wife’s I-130 form, although it did not notify her until April 25,

2001.

     On January 29, 2001, the BIA affirmed the IJ’s ruling, denying

Alhadji’s appeal of the asylum claim, but granting his request for

voluntary departure.    The BIA ordered him to depart within thirty

days of the ruling.    On February 28, 2001, the last day to depart

voluntarily, Alhadji filed his petition for review with this court.

He also filed a stay of deportation pending our review of his

petition, which we granted on April 11, 2001.

     On April 27, 2001, Alhadji properly filed the approved I-130

form and a new I-485 form with the BIA.     He concurrently filed a

motion with the BIA seeking to reopen his case because he was now

married to a U.S. citizen and because political circumstances in

Cameroon had deteriorated since the IJ’s ruling.     On August 31,

2001, the BIA denied his motion to reopen because his failure to

voluntarily depart by February 28, 2001 statutorily barred the BIA



                                  3
from considering his change in status.     It also denied Alhadji’s

motion to reopen because the additional evidence he produced of

political conditions in Cameroon was insufficient to support a

valid asylum claim.    On September 26, 2001, he filed a second

petition for review contesting this decision.    This petition was

consolidated with the one filed earlier.

                            II. Analysis

     Alhadji contends that the BIA incorrectly affirmed the IJ’s

denial of his asylum application and improperly denied his motion

to reopen based on his change in status and the changed political

conditions in Cameroon.1   Concerning the BIA’s refusal to consider

his change in status, he argues that his failure to voluntarily

depart should not bar consideration of this claim because: (1) the

voluntary departure period was equitably tolled due to the INS’s

failure to timely process his change of status application; (2) the

voluntary departure period was tolled when he filed his initial

petition for review; (3) the INS should have reinstated voluntary


     1
          Additionally, Alhadji requests that we exercise our own
power to reinstate voluntary departure if we do not find that the
BIA erred in denying relief. This court has not yet decided if we
have the ability to reinstate voluntary departure. But because he
waited until the last day of the voluntary departure period to file
his petition for review and there is no evidence in the
administrative record that he requested an extension of the
voluntary departure deadline from the INS district director, we are
foreclosed by circuit precedent from even considering this relief.
See Faddoul v. INS, 37 F.3d 185, 192 (5th Cir. 1994); Farzad v.
INS, 808 F.2d 1071, 1072 (5th Cir. 1987).



                                 4
departure when it denied his motion to reopen; and (4) the INS

should have exercised its sua sponte authority to reopen his case.

As for the asylum claim, Alhadji argues that the BIA erred because:

(1) he had established a well-founded fear of political persecution

at the IJ hearing and (2) the changed political conditions in

Cameroon since the IJ hearing warranted a grant of asylum.                The

government challenges Alhadji’s arguments and further contends that

we   lack jurisdiction   to   consider   his   reasons    for   failing    to

voluntarily depart because they were not raised in his motion to

reopen.

A.    Jurisdiction

      Before considering the merits of Alhadji’s claims, we must

first determine if we have jurisdiction.       “An order of deportation

... shall not be reviewed by any court if the alien has not

exhausted the administrative remedies available to him as of right

under the immigration laws and regulations.”             INS § 106a(c), 8

U.S.C.    §   1105a(c)(repealed).2       The   administrative      remedies

available to Alhadji include a motion to reopen.                See Wang v.



      2
          Because Alhadji was placed in deportation proceedings
before April 1, 1997, and his BIA appeal was denied after October
31, 1996, the transitional rules of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (“IIRIRA”) apply. See
Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 n.4 (5th Cir. 2001).
When there is a gap in the transitional rules, the now-repealed
Immigration & Naturalization Act (“INA”) will apply.           See
Rodriguez-Silva v. INS, 242 F.3d 243, 246 (5th Cir. 2001).



                                     5
Ashcroft, 260 F.3d 448, 452-53 (5th Cir. 2001).           However, we will

retain jurisdiction if the petitioner alleged facts sufficient to

support the claim. See Socop-Gonzalez v. INS, 272 F.3d 1176, 1184

(9th Cir. 2001). Therefore, if Alhadji has not raised a claim or

facts sufficient to support a claim in his motion to reopen, we

cannot review that claim.

     Alhadji’s motion asked the BIA to reopen its proceedings and

withhold deportation because: (1) he was now eligible for a change

in status because his wife’s I-130 form had been approved; (2) the

political conditions in Cameroon had deteriorated since the initial

IJ hearing; and (3) the INS was equitably estopped from challenging

the motion due to its failure to timely process his change in

status application as this directly prevented him from requesting

relief sooner.    Despite these arguments, Alhadji’s motion does not

provide any basis for excusing his failure to leave the United

States by the voluntary departure deadline.

     Based   on   the   last   argument   in   his   motion,   Alhadji   has

sufficiently exhausted his claim that the INS’s actions excused his

failure to voluntarily depart.       He argued in his motion that the

INS is equitably estopped from challenging the reopening of the

proceeding due to its alleged misconduct.            This claim is akin to

his current argument on appeal, which contends that the voluntary

departure period was equitably tolled because the INS’s actions




                                    6
prevented him from timely completing his application for a change

in status.    Both claims allege that the BIA should excuse his

inability to seek an adjustment in status earlier and consider his

application due to the INS’s actions.         Because both arguments rely

on the same facts and contest essentially the same issue, we find

that Alhadji raised the current claim in his motion to reopen.

Consequently, he has administratively exhausted this claim and we

may consider it on appeal.

     However, Alhadji has failed to exhaust his other arguments

concerning voluntary departure.         His motion to reopen neither

discusses nor mentions any other arguments for circumventing the

voluntary departure deadline.       In his motion, Alhadji failed to

argue that (1) the voluntary departure period was tolled when he

filed his    petition   for   review,   (2)   the   INS   should   reinstate

voluntary departure if it denied the motion, or (3) the INS should

exercise its sua sponte authority to reopen the proceedings.3

Because Alhadji has failed to exhaust his administrative remedies

as to these claims, we cannot review them on appeal.



     3
          It may seem counter-intuitive to require a petitioner to
exhaust his remedies with regard to the BIA’s sua sponte power when
the BIA is, by definition, acting “on its own motion.” But we have
previously held that “[w]hile an agency may act upon its own
motion, a party that seeks to challenge on appeal for failure to
act sua sponte must sufficiently raise the issue in the first
instance before the agency.” Wang, 260 F.3d at 453. Therefore,
Alhadji was required to raise this issue in his motion to reopen.



                                    7
B.     Change of Status

       Next, we consider the merits of Alhadji’s claim that his

voluntary departure deadline was equitably tolled due to the INS’s

actions.      The BIA denied his motion to reopen because it was

statutorily barred from considering his change in status because

Alhadji did not leave the United States by the voluntary departure

deadline.     We review the BIA’s denial of a motion to reopen using

a    highly   deferential   abuse   of       discretion   standard.   Lara    v.

Trominski, 216 F.3d 487, 496 (5th Cir. 2000).

       Alhadji argues that his failure to voluntarily depart was

directly caused by the INS’s actions.               Specifically, he alleges

that the INS’s failure to timely approve his wife’s I-130 form and

to inform him that his I-485 form was improperly filed created an

unreasonable delay.       He maintains that this delay constitutes an

exceptional circumstance sufficient to toll the voluntary departure

deadline.

       Section 242b(e)(2)(A) of the INA provides:

       Any alien allowed to depart voluntarily under 244(e)(1)
       or who has agreed to depart voluntarily at his own
       expense under Section 242(b)(1) who remains in the United
       States after the scheduled date of departure, other than
       because of exceptional circumstances, shall not be
       eligible for relief described in paragraph (5) for a
       period of 5 years after the scheduled date of departure
       or the date of unlawful reenter, respectively.


INA § 242b(e)(2)(A), 8 U.S.C. § 1252b(e)(2)(A) (repealed).                   The

relief that is proscribed by a failure to voluntarily depart


                                         8
includes adjustments of status.            Id. § 242b(5)(C), 8 U.S.C. §

1252b(5)(C)(repealed).          For purposes of the voluntary departure

provisions,     “[t]he   term    ‘exceptional    circumstances’    refers    to

exceptional circumstances (such as serious illness of the alien or

death of an immediate relative of the alien, but not including less

compelling circumstances) beyond the control of the alien.” Id. §

242b(f)(2), 8 U.S.C. § 1252b(f)(2)(repealed).              Therefore, the

question   is    whether     the   INS’s   actions    created     exceptional

circumstances beyond Alhadji’s control. We find that they did not.

     First, no exceptional circumstance prevented Alhadji from

voluntarily leaving the United States. The examples of exceptional

circumstances listed in the statute concern strong physical or

moral reasons for remaining in the United States.          Less compelling

circumstances     do   not   warrant   relief.     Therefore,     exceptional

circumstances are limited to situations when a person is unable to

leave, not when that person merely chooses not to leave.                    See

Mardones v. McElroy, 197 F.3d 619, 624 (2d Cir. 1999)(requiring an

alien to show that he was unable, not unwilling, to comply with the

departure deadline).         The INS’s actions did not physically or

morally prevent Alhadji from leaving.             He simply chose to stay

while he attempted to have his status adjusted.         However, under the

statute, his failure to voluntarily leave precludes him from

receiving that desired result.         Consequently, the INS’s actions do

not constitute an exceptional circumstance sufficient to toll the


                                       9
voluntary departure deadline.

     Second,    even   if   the   administrative   problems   were   an

exceptional circumstance, they were not beyond Alhadji’s control.

The primary reason Alhadji was unable to change his status prior to

the voluntary departure deadline is because he improperly filed his

I-485 form with the Cleveland office.     The INS regulations state:

     An alien who believes he or she meets the eligibility
     requirements of section 245 of the Act ...shall apply to
     the director having jurisdiction over his or her place of
     residence unless otherwise instructed in 8 CFR part 245,
     or by the instruction on the application form. After an
     alien, other than an arriving alien, is in deportation or
     removal proceedings, his or her application for
     adjustment of status under section 245 of the Act
     ...shall be made and considered only in those
     proceedings.

8 C.F.R. § 245.2(a)(1).     Therefore, Alhadji needed to file his I-

485 form with the BIA who was handling his appeal,            not the

Cleveland INS office. Further, Alhadji learned of the misfiling in

January 2001, almost six weeks before the voluntary departure

deadline.    Yet he did not re-file his I-485 application with the

BIA until April 2001, almost two months after the deadline had

passed.     Finally, even though Alhadji made numerous efforts to

follow up on his change of status application after the BIA denied

his appeal, there is no evidence that he made any effort to track

the status of his application for the two years prior to the BIA’s

decision.     Although this does not excuse the INS’s failure to

timely process Alhadji’s and his wife’s applications, the INS’s




                                   10
failure does not constitute exceptional circumstances that were

beyond Alhadji’s control. Therefore, Alhadji’s voluntary departure

deadline was not tolled, and the BIA did not abuse its discretion

in denying his motion to reopen.

C.   Asylum Claim

     Alhadji’s remaining claims concern his application for asylum.

He contests both the BIA’s finding that the IJ properly denied his

request for asylum and its failure to grant asylum on his motion to

reopen due to deteriorating political conditions in Cameroon.   We

will uphold the initial BIA decision on asylum if supported by

reasonable, substantial, and probative evidence on the record

considered as a whole.   INA § 106(a)(4), 8 U.S.C. § 1105a(a)(4)

(repealed); INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).    We

will reverse only if the evidence presented was such that a

reasonable fact finder would have to conclude that the requisite

fear of persecution existed.    Id.   The BIA’s decision to deny

reopening will be disturbed only if the BIA abused its discretion.

Lara, 216 F.3d at 496.

     Asylum may be granted to an alien who is a refugee.     INA §

208(a), 8 U.S.C. § 1158(a)(repealed). A “refugee” is defined as an

alien who is unable or unwilling to return to his country of origin

“because of persecution or a well-founded fear of persecution on

account of race, religion, nationality, membership in a particular

social group, or political opinion.” Id. § 101(a)(42)(A), 8 U.S.C.


                                11
§ 1101(a)(42)(A).       Here, Alhadji alleges persecution on account of

his political opinion.

     In initially reviewing his asylum claim and affirming the IJ’s

decision, the BIA considered Alhadji’s testimony from the IJ

hearing, reports from the State Department and other international

organizations on political conditions in Cameroon, as well as other

documentation, including a summons to appear at a police station4

and a medical certificate showing that he had been physically

assaulted   after   a    political   rally.   Alhadji’s   testimony,   as

supplemented by the above documentation, proved the following: (1)

in 1984, Alhadji and his family were arrested in retribution for

his uncle’s political activities; (2) from 1984 to 1990, there were

no incidents of harassment; (3) Alhadji was a member of a student

organization, the Student Democratic Front (“SDF”), which protested

political conditions and was involved in protests and distributing

pamphlets; (4) in 1990, Alhadji was arrested for participating in

a protest rally that had not received a demonstration permit; (5)

after this arrest, Alhadji was in prison for three weeks and was

physically assaulted by prison authorities; (6) he was arrested a

few other times before leaving Cameroon for similar demonstrations,

although he was released each time upon posting bail; (7) he was

allowed to travel abroad; (8) he attended school in Germany for at


     4
          While testifying at the IJ hearing, Alhadji conceded that
this document was not an arrest warrant.


                                     12
least two years before coming to the United States; and (9) he is

still a member of the U.S. branch of the SDF, but has not been

actively involved with the organization.    The IJ found Alhadji’s

testimony and evidence credible. In addition, the reports from the

State Department and other international organizations documented

incidents of human rights violations related to demonstrations in

Cameroon.    But the State Department also noted that despite these

occurrences, large and active opposition groups were still able to

operate within the country.

     The BIA found the above information did not establish that

Alhadji had either suffered past persecution or had a well-founded

fear of persecution in the future on account of his political

opinion if he returned to Cameroon.    Although acknowledging some

of the political problems in Cameroon, the BIA discounted the 1990

arrest because no permit was obtained prior to the demonstration

and because the arrest appeared based on crowd control, not because

of any expressed political views.       The Board also noted that

Alhadji’s freedom to travel abroad and study and the six-year

absence of any adverse incidents provided proof that asylum was not

warranted.     Finally, the BIA acknowledged the evidence of human

rights violations in Cameroon, but found that this was insufficient

to show that a person in Alhadji’s position would be persecuted if

he returned.

     Considering the above, the BIA’s finding is supported by



                                 13
substantial evidence.     First, the 1984 event is too remote to be

given significant weight considering that the six years that

followed were without incident.           Second, the 1990 arrest can be

characterized as a disorderly conduct charge, not a politically

motivated arrest.     Third, while in Cameroon, political authorities

did not prevent him from traveling and studying abroad.              Fourth, he

has not been politically active since leaving Cameroon, which

minimizes the chances that he will suffer any harassment upon his

return.    Fifth, the reports documenting the political troubles in

Cameroon   do   not   prove   that   Alhadji      in    particular   would   be

persecuted upon his return.        Although the physical violence that

took place while he was under arrest is troubling, there is

“reasonable, substantial, and probative evidence on the record

considered as a whole” to support the BIA’s decision.

     Alhadji    further   argues     that   the   Third     Circuit’s    recent

decision in Ezeagwuna v. Ashcroft, 301 F.3d 116 (3rd Cir. 2002),

compels us to grant asylum.        Although the petitioner in that case

also sought political asylum to avoid returning to Cameroon, this

decision is distinguishable. In Ezeagwuna, the BIA never contended

that the petitioner failed to present enough evidence to support a

political asylum claim.       Id. at 131 n. 12.         Instead, it relied on

an   adverse    credibility     determination          to   deny   her   asylum

application.     When the Third Circuit held that the BIA erred

because there was not substantial evidence to support this adverse


                                     14
credibility      determination,          it    found    that      the    petitioner        was

entitled to asylum. Id. at 131-34. Additionally, the petitioner’s

accusations of persecution were more developed than Alhadji’s

because    the    harassment       was    more       frequent,         more    recent,     and

supported with overwhelming testimony and documentation.                           Id.     She

was also still politically active and had an outstanding search

warrant against her in Cameroon, suggesting that persecution would

be imminent upon her return.             Id. at 120-21.           Therefore, the Third

Circuit decision is not sufficiently analogous and does not require

us to find that a reasonable fact finder must conclude that Alhadji

was persecuted or possessed the requisite fear of persecution.

     Finally,     Alhadji       claims        that    deteriorating           conditions    in

Cameroon since the IJ hearing warranted reopening his proceedings

to consider his asylum claim.             In support of this request, Alhadji

provided additional reports detailing human rights violations in

Cameroon.    However, this information merely affirms that the human

rights    concerns      raised    in     the       initial   IJ    hearing       are   still

continuing.      It does not prove that a person in Alhadji’s position

would have a well-founded fear of persecution if he returned.

Therefore, we hold that the BIA did not abuse its discretion by

failing    to    reopen    the    proceedings          based      on    this     additional

evidence.

     Because      the     BIA    based    its        decision     to    deny     asylum    on

substantial evidence and did not abuse its discretion in denying


                                              15
Alhadji’s motion to reopen, we DENY the petitioner’s request for

asylum relief.

                         III.   Conclusion

     The BIA did not abuse its discretion in failing to reopen

Alhadji’s proceedings to consider his change of status because

Alhadji failed to voluntarily depart within thirty days of the

BIA’s decision.   In addition, Alhadji has not proven that he is

eligible for asylum based on his fear of political persecution if

he returned.   Therefore, we DENY his petitions requesting relief.

Further, we ORDER that the stay of deportation pending disposition

of the initial petition for review, which this Court previously

granted, is lifted.

PETITIONS FOR RELIEF DENIED; STAY LIFTED




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