                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-1071


KESTER IGEMHOKHAI OBOMIGHIE,

                Petitioner,

     v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



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


Submitted:   April 16, 2012                 Decided:    May 10, 2012


Before MOTZ, KING, and DIAZ, Circuit Judges.


Petition dismissed by unpublished per curiam opinion.


Kester Igemhokhai Obomighie, Petitioner Pro Se.    Jonathan Aaron
Robbins,   Office  of   Immigration  Litigation,   UNITED  STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Kester Igemhokhai Obomighie, a native and citizen of

Nigeria,   petitions     for     review       of   an    order      of   the    Board   of

Immigration Appeals (“Board”) denying his motion to reconsider

and to reopen.       We dismiss the petition for review.

           This court reviews the denial of motions to reopen and

to reconsider for abuse of discretion.                   INS v. Doherty, 502 U.S.

314, 323-24 (1992); Narine v. Holder, 559 F.3d 246, 249 (4th

Cir.   2009);   Mosere    v.    Mukasey,       552      F.3d   397,      400    (4th   Cir.

2009); Jean v. Gonzales, 435 F.3d 475, 481 (4th Cir. 2006); 8

C.F.R. § 1003.2(a) (2011).          A motion to reconsider asserts that

the Board erred in its earlier decision, and must specify the

error of law or fact warranting reconsideration.                          See 8 C.F.R.

§ 1003.2(b)(1).       The Board’s broad exercise of discretion will

be reversed only if its decision “lacked a rational explanation,

departed      from     established        policies,            or      rested     on    an

impermissible basis.”          Jean, 435 F.3d at 483 (internal quotation

marks and citations omitted).              The burden is on the movant to

establish that reconsideration is warranted.                        INS v. Abudu, 485

U.S. 94, 110 (1988).       In order to prevail, a movant must do more

than simply challenge the Board’s consideration of the evidence

and the resulting decision.           See Ogundipe v. Mukasey, 541 F.3d

257, 263 (4th Cir. 2008).           The movant must point to a specific

error of fact or law in the agency decision.                     Id.

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            A motion to reopen “shall state the new facts that

will be proven at a hearing to be held if the motion is granted

and    shall   be     supported        by   affidavits     or     other    evidentiary

material.”     8 C.F.R. § 1003.2(c)(1).              Further, the motion “shall

not be granted unless it appears to the Board that evidence

sought to be offered is material and was not available and could

not have been discovered or presented at the former hearing.”

Id.

            An alien may file one motion to reopen within ninety

days   of   the     entry    of    a    final    order   of     removal.      8   U.S.C.

§ 1229a(c)(7)(A), (C) (2006); 8 C.F.R. § 1003.2(c)(2).                        The time

and number limits do not apply if the basis for the motion is to

seek asylum or withholding of removal based on changed country

conditions, “if such evidence is material and was not available

and would not have been discovered or presented at the previous

proceeding.”        8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.

§ 1003.2(c)(3)(ii).

            The Board denied reconsideration because Obomighie did

not show that there was an error of law or fact in the earlier

decision warranting reconsideration.                     The Board further found

that Obomighie’s new evidence did not show a change in country

conditions     that    warranted        reopening.        The    Board     also   denied

Obomighie’s       claim     that   he    received    ineffective      assistance      of

counsel during the proceedings involving the motion to reopen

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because he did not fulfill the requirements under In re Lozada,

19 I. & N. Dec. 637 (BIA 1988).

              Under    8   U.S.C.       §    1252(a)(2)(C)          (2006),      this     court

lacks      jurisdiction,        except             as      provided        in      8     U.S.C.

§ 1252(a)(2)(D) (2006), to review the final order of removal of

an alien convicted of certain enumerated crimes, including an

aggravated felony.          This court retains jurisdiction “to review

factual determinations that trigger the jurisdiction-stripping

provision, such as whether [Obomighie] [i]s an alien and whether

[]he has been convicted of an aggravated felony.”                                Ramtulla v.

Ashcroft, 301 F.3d 202, 203 (4th Cir. 2002).                              If the court is

able to confirm these two factual determinations, then, under 8

U.S.C.    §    1252(a)(2)(C),           (D),       the     Court    can     only       consider

“constitutional        claims      or       questions       of   law.”          See    Mbea   v.

Gonzales, 482 F.3d 276, 278 n.1 (4th Cir. 2007).

              Obomighie      was         found          removable     for       having        two

aggravated felony convictions and two convictions for crimes of

moral     turpitude.         See     8       U.S.C.       § 1227(a)(2)(A)(ii),            (iii)

(2006).       Because Obomighie was found removable as a result of

being convicted of an aggravated felony, this court does not

have jurisdiction over the Board’s November 11, 2011 order, see

Hanan v. Mukasey, 519 F.3d 760, 763 (8th Cir. 2008); Martinez-

Maldonado v. Gonzales, 437 F.3d 639, 683 (7th Cir. 2006), except

to   review      the       factual          determinations          that        trigger       the

                                               4
jurisdiction stripping provision.                       Obomighie concedes he is an

alien.     Our jurisdiction to review the factual determination

that     Obomighie         was     convicted       of    an     aggravated         felony     is

proscribed by 8 U.S.C. § 1252(d)(1) (2006), under which this

Court may review a final order of removal only if the alien has

exhausted all available remedies.                       See Massis v. Mukasey, 549

F.3d    631,    638-40       (4th     Cir.   2008).           Because    Obomighie         never

properly exhausted his claims that his convictions for fraud and

for    assault       were     not     aggravated         felonies,      we    are        without

jurisdiction to review those findings.                        Thus, this court is left

only with the jurisdiction to review constitutional claims or

questions of law pertaining to the November 11, 2011 order.

               In    his     pro     se   informal       brief    and    his       subsequent

filings, Obomighie has raised numerous issues, but only a few

pertaining to the November 11, 2011 order, none of which concern

constitutional claims or questions of law.

               Accordingly,          because       Obomighie      was     removable          for

having been convicted of an aggravated felony, we are without

jurisdiction        to     review     the    Board’s      November      11,       2011    order.

While we grant leave to proceed in forma pauperis, we dismiss

the petition for review.                  We also deny Obomighie’s motion for

appointment         of     counsel    and    grant       his    motion       to    strike     or

withdraw his initial informal brief and file a corrected brief.

We    dispense      with     oral     argument      because      the    facts      and     legal

                                               5
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                               PETITION DISMISSED




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