     Case: 10-60161 Document: 00511400512 Page: 1 Date Filed: 03/03/2011




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

                                                 FILED
                                                                            March 3, 2011
                                     No. 10-60161
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

SAMSON MICHAEL WOLDEYES, also known as Samson Woldeyes-Woreku,

                                                   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. A089 096 473


Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Samson Michael Woldeyes petitions for review of a decision by the Board
of Immigration Appeals (BIA) denying his motion to reopen his immigration
proceeding in which an immigration judge (IJ) had denied his application for
asylum, withholding of removal, or relief under the Convention Against Torture.
Woldeyes sought immigration relief based on his alleged persecution or fear of
persecution and torture on account of his race, political opinion, and membership



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-60161

in a particular social group. The IJ denied relief after finding that Woldeyes had
perjured himself and was thus not a credible witness.
      The BIA upheld the IJ’s adverse credibility determination and held that
Woldeyes had failed to meet his burden of proving eligibility for immigration
relief. Woldeyes moved to reopen on the basis of newly acquired evidence,
including affidavits which asserted that Woldeyes’s remarks at his credible fear
interview had been mistranslated.       The BIA concluded that the affidavits
attesting to mistranslations had been supplied by people who were neither
certified translators nor language experts. The BIA noted further that each
affidavit contained text that was nearly identical to the other affidavit, which
the BIA believed to be an indication that the affiants had not independently
prepared their respective affidavits. The BIA also concluded that the documents
submitted with Woldeyes’s motion to reopen were not likely to alter the result
in the case. Consequently, the BIA denied the motion to reopen.
      Woldeyes contends that the BIA abused its discretion when it declined to
reopen the proceedings.     He maintains that the BIA failed to exercise its
discretion properly because it engaged in impermissible factfinding by
minimizing the evidentiary value of the affidavits he submitted. In support of
his argument, he cites 8 CFR § 1003.1(d)(3)(iv), which provides that the BIA
“will not engage in factfinding in the course of deciding appeals.”
      If “the BIA’s decision itself results in a new issue and the BIA has an
available and adequate means for addressing that issue, a party must first bring
it to the BIA’s attention through a motion for reconsideration.” Omari v. Holder,
562 F.3d 314, 320 (5th Cir. 2009). Consequently, even if his contention could not
have been raised prior to the issuance of the BIA’s denial of the motion to
reopen, Woldeyes was nevertheless required to exhaust this issue by moving for
reconsideration in the BIA. See 8 U.S.C. § 1252 (d)(1); Omari, 562 F.3d at 320.
In this circuit, an alien meets the exhaustion requirement only if he has
explicitly raised the issue before the BIA on direct appeal, in a motion to reopen,

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                                 No. 10-60161

or in a motion for reconsideration. Omari, 562 F.3d at 318. The exhaustion
requirement affords “the agency with the expertise in immigration matters[ ]
with the opportunity” to address all arguments, including those of its own
alleged legal error.   Id. at 322.   Therefore, “allegations of impermissible
factfinding” must be urged in a motion for reconsideration presented to the BIA
if they were not previously brought to the BIA’s attention. Dale v. Holder, 610
F.3d 294, 299 (5th Cir. 2010).
      Woldeyes recognizes the exhaustion requirement but states that it does
not bar his petition for review, intimating that he had already presented the
issue to the BIA and thus was not required to do so again in a motion for
reconsideration. Woldeyes fails to explain, however, how and when he brought
to the BIA’s attention the argument that he now advances, namely, that the BIA
engaged in impermissible factfinding in its denial of his motion to reopen.
Woldeyes’s motion to reopen did not put forth any such argument. Thus, at no
time was the BIA ever presented with the claim that it was or would be an abuse
of discretion not to reopen based on a finding that the affidavits and documents
lacked evidentiary value and reliability. The matter was therefore not properly
exhausted by Woldeyes; consequently, we lack jurisdiction to grant him relief.
See Omari, 562 F.3d at 320-23.
      Woldeyes’s petition for review is DISMISSED.




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