     Case: 10-60902     Document: 00511581422         Page: 1     Date Filed: 08/24/2011




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

                                                                            FILED
                                                                          August 24, 2011
                                     No. 10-60902
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ERNEST SELAMBI,

                                                  Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A099 276 481


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Ernest Selambi, a citizen of Cameroon, has filed a petition for review of the
Board of Immigration Appeals’ (BIA) dismissal of his appeal from the decision
of the immigration judge denying his application for withholding of removal and
relief under the Convention Against Torture (CAT). Before this court, he does
not challenge the adverse ruling on his application for withholding of removal
or relief under the CAT. Instead, he contends that the BIA abused its discretion
by not considering his pro se brief, which included documentary evidence

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 10-60902    Document: 00511581422      Page: 2    Date Filed: 08/24/2011

                                  No. 10-60902

presented for the first time in the case, as a motion to remand or reopen the
proceedings. Selambi also asserts that any denial of such a motion constitutes
an abuse of discretion because his new evidence was material and some of it was
not available at the time of his hearing before the immigration judge.
      When an alien files a motion seeking consideration of new evidence during
the pendency of an appeal to the BIA, it is considered a motion to remand in the
nature of a motion to reopen. Ramchandani v. Gonzales, 434 F.3d 337, 340 n.6
(5th Cir. 2005). Such a motion is subject to the same standards and regulations
governing motions to reopen. Id. We review the BIA’s denial of a motion to
reopen “under a highly deferential abuse-of-discretion standard.”          Zhao v.
Gonzales, 404 F.3d 295, 303 (5th Cir. 2005).         That discretion will not be
disturbed unless it is arbitrary, capricious, racially invidious, or utterly without
evidentiary foundation. Mai v. Gonzales, 473 F.3d 162, 164 (5th Cir. 2006).
      Contrary to Selambi’s assertion, the BIA in fact expressly declined to
remand the case for further consideration. Moreover, although Selambi did
present some evidence that was not available at the time of his hearing before
the immigration judge, he has not shown that the evidence was material or that
it would have affected the adverse credibility finding, which was based on his
attempts to rely on a sham marriage to adjust his status and on discrepancies
and omissions in Selambi’s testimony, application, and evidence regarding the
abuses that he personally suffered. Thus, Selambi has not shown that the BIA
abused its discretion by denying his motion to remand.               See 8 C.F.R.
§ 1003.2(c)(1); Mai, 473 F.3d at 164. Consequently, Selambi’s petition for review
is DENIED.




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