IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-60161

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

March 3, 2011

Lyle W. Cayce

Clerk

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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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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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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