     Case: 17-60725      Document: 00514896024         Page: 1    Date Filed: 04/01/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit


                                    No. 17-60725
                                                                                  FILED
                                                                               April 1, 2019
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
HAMIS ATHOMAN CHANDE,

                                                 Petitioner

v.

WILLIAM P. BARR, U. S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A099 613 182


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Hamis Athoman Chande, a native and citizen of Tanzania, petitions this
court for review of the decision of the Board of Immigration Appeals (BIA)
affirming the Immigration Judge’s (IJ) denial of his motion to reopen for lack
of jurisdiction and declining to reopen his removal proceedings. He also moves
for the appointment of counsel.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 17-60725

       We review the BIA’s decision and will consider the underlying decision
of the IJ to the extent it influenced the BIA’s determination. Wang v. Holder,
569 F.3d 531, 536 (5th Cir. 2009). Factual findings are reviewed under the
substantial evidence standard, and legal questions are reviewed de novo, with
deference accorded to the BIA’s reasonable interpretations of immigration
statutes and regulations. Rui Yang v. Holder, 664 F.3d 580, 584-85 (5th Cir.
2011). The denial of a motion to reopen is reviewed under “a highly deferential
abuse-of-discretion standard.” Mendias-Mendoza v. Sessions, 877 F.3d 223,
226 (5th Cir. 2017) (internal quotation marks and citation omitted).
       Chande has failed to show that the BIA erred in affirming the IJ’s denial
of his motion to reopen for lack of jurisdiction. See Rui Yang, 664 F.3d at 584-
85.    The administrative record reflects that in 2007, the BIA dismissed
Chande’s appeal of the IJ’s denial of his first motion to reopen and adjudicated
the motion to reopen filed before the BIA. Accordingly, jurisdiction over any
subsequently filed motions to reopen was vested with the BIA. See 8 C.F.R.
§ 1003.2(a); 8 C.F.R. § 1003.23(b)(1); In re C-W-L-, 24 I. & N. Dec. 346, 350-51
(BIA 2007); In re Aviles, 15 I. & N. Dec. 588, 588 (BIA 1976).
       Assuming that it had jurisdiction, the BIA declined to reopen Chande’s
removal proceedings pursuant to 8 U.S.C. § 1229a(c)(7)(C)(ii) because Chande
had failed to establish that there were materially changed conditions in
Tanzania warranting the reopening of his removal proceedings for a hearing.
Chande has not shown that the BIA’s decision was an abuse of discretion. See
Mendias-Mendoza, 877 F.3d at 226-27. Even if Chande’s sworn allegations
were sufficient to make a prima facie showing that a deportation officer
disclosed information in violation of 8 C.F.R. § 208.6 and that the Tanzanian
government knew he was a failed asylum seeker, Chande did not present any
evidence that the Tanzanian government is embarrassed by and persecutes



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                                  No. 17-60725

failed asylum seekers upon their return. See 8 C.F.R. § 1003.2(c)(1); Dayo v.
Holder, 687 F.3d 653, 658 (5th Cir. 2012). Likewise, even if the evidence was
sufficient to establish that Chande was convicted of a drug offense and that the
Tanzanian government knew or could easily become aware of this conviction,
Chande did not present any objective evidence that the Tanzanian government
is embarrassed by and persecutes persons convicted of drug offenses upon their
return. See § 1003.2(c)(1); Mendias-Mendoza, 877 F.3d at 227-28.
      The BIA was not afforded an opportunity to address Chande’s arguments
that it: (1) violated precedent and his rights to due process and equal protection
of the law by engaging in improper factfinding rather than remanding the
matter to the IJ for a hearing on the merits of his application for relief from
removal; (2) applied the wrong legal standard in deciding his motion to reopen;
(3) failed to consider and make findings on all of the claims presented in his
motion to reopen; (4) improperly evaluated each piece of evidence in isolation
when assessing whether he had made a prima facie showing of his eligibility
for relief from removal; and (6) conflated the burden of making a prima facie
showing of eligibility for relief from removal with the requirement that he
produce material, previously unavailable evidence to justify reopening.
Therefore, Chande failed to exhaust his administrative remedies as to these
issues, and we lack jurisdiction to consider them in the instant petition. See
Omari v. Holder, 562 F.3d 314, 320-21 (5th Cir. 2009).
      Finally, Chande contends that the BIA abused its discretion by refusing
to refer his case to a three-member panel. Because Chande has not shown that
his case met the standards for assignment to a three-member panel, he has
failed to show an abuse of discretion. See 8 C.F.R. § 1003.1(e)(6).




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                              No. 17-60725

     Accordingly, Chande’s petition for review is DENIED IN PART and
DISMISSED IN PART for lack of jurisdiction. His motion for the appointment
of counsel is DENIED.




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