2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-22-2010

Woghiren v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4442

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2010

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2010 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Woghiren v. Atty Gen USA" (2010). 2010 Decisions. Paper 1855.

http://digitalcommons.law.villanova.edu/thirdcircuit_2010/1855
 Honorable Christopher C. Conner, Judge of the United States District Court for 1

the Middle District of Pennsylvania, sitting by designation.

 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 07-4442

_____________

LESLIE E. WOGHIREN,

 Petitioner

 v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

_____________

On Petition for Review from the 

Board of Immigration Appeals

Agency Docket No. A28-900-601

_____________

Submitted Under Third Circuit L.A.R. 34.1(a),

January 25, 2010

Before: FUENTES and FISHER, Circuit Judges, and CONNER, District Judge 1

(Opinion Filed: February 22, 2010)

OPINION OF THE COURT

FUENTES, Circuit Judge:
-2-

Leslie E. Woghiren was found deportable by an Immigration Judge (“IJ”), after

which he filed an appeal with the Board of Immigration Appeals (“BIA”), which

dismissed his appeal. In this petition for review of the BIA’s decision, Woghiren relies

upon an argument that he did not present to the BIA. Because Woghiren did not exhaust

the claim he raises herein before the BIA, we conclude that we lack jurisdiction over his

claim and will dismiss his petition for review. 

I.

Because we write primarily for the parties, we only discuss the facts and

proceedings to the extent necessary for resolution of the issue raised on appeal. 

Woghiren is a citizen and native of Nigeria who was admitted to the United States on a

travel visa in 1986. Thereafter, he became a conditional resident as a result of having

married a United States citizen. He filed a Form I-751 petition, seeking to remove the

conditions of his residency, but in 1991 the Immigration Service denied his petition on

account of Woghiren’s failure to prove that the marriage was a bona fide “proper

marriage.” 8 U.S.C. § 1186a(d)(1)(A).

Later that year, Woghiren was granted advance parole in order to travel to Nigeria,

but upon his return, he was placed in exclusion proceedings for having entered the United

States without valid entry documents. This placement was apparently in error, because at

the time, Woghiren’s appeal of his I-751 petition was still pending, and he was thus not

excludable. Upon Woghiren’s objection to the IJ on this basis, the exclusion proceedings
-3-

were terminated. The INS again placed Woghiren in exclusion proceedings in 1996, but

these proceedings were likewise terminated.

In March 1997, the INS charged Woghiren with being deportable pursuant to 8

U.S.C. § 1227(a)(1)(D)(i) (providing for the deportability of a conditional permanent

resident whose conditional residency has been terminated), but the IJ once again

terminated the proceedings because Woghiren had filed a second I-751 application. This

application was denied in 2004 for substantially the same reason underlying the denial of

Woghiren’s first I-751—that is, Woghiren had again failed to prove that his marriage was

bona fide. See 8 U.S.C. § 1186a(d)(1)(A).

Following the denial of Woghiren’s second I-751, the Government sought to recalendar the deportation proceedings. At a hearing before the IJ, Woghiren, uninformed

by counsel or the IJ that he might be able to pursue the remedy of suspension of

deportation, conceded that he was deportable. The IJ ordered that Woghiren voluntarily

depart the United States by July 2006. Woghiren did not so depart, and instead, in July

2007, filed a motion to reopen the matter, alleging that his prior counsel had been

ineffective because he had failed, inter alia, to pursue the remedy of cancellation of

removal. The IJ denied the motion, concluding (1) that it was untimely and (2) that

cancellation of removal was not called for because Woghiren had not demonstrated the

requisite level of hardship to qualify for cancellation of removal. 

Woghiren appealed the IJ’s decision to the BIA, contending that during the re-
-4-

calendared deportation proceedings, the IJ violated his obligation to inform Woghiren of

his potential eligibility for cancellation of removal. See 8 C.F.R. § 1240.11(a) (2) (“The

immigration judge shall inform the alien of his or her apparent eligibility to apply for any

of the benefits enumerated in this chapter and shall afford the alien an opportunity to

make application during the hearing, in accordance with the provisions of § 1240.8(d).”) 

Significantly, in his appeal to the BIA, Woghiren made no mention of the separate

remedy for which he now contends he was eligible—i.e., suspension of deportation. The

BIA dismissed the appeal, explaining that although immigration judges have the duty to

inform people appearing before them of their potential eligibility for relief, see id., the

remedy Woghiren claimed that the IJ should have informed him of—cancellation of

removal—was not available in a deportation proceeding such as Woghiren’s. Following

the BIA’s dismissal of his appeal, Woghiren petitioned this Court for review.

II.

Under the INA, we may review the BIA’s decision in this case only if Woghiren

“has exhausted all administrative remedies available to . . . [him] as of right.” 8 U.S.C. §

1252(d)(1). We have interpreted this statutory provision to require “an alien ‘to raise or

exhaust his or her remedies as to each claim or ground for relief [before the BIA] if he or

she is to preserve the right of judicial review of that claim,’”and have held that this

exhaustion requirement “is a jurisdictional rule.” Hoxha v. Holder, 559 F.3d 157, 159 &

n.3 (3d Cir. 2009) (quoting Abdulrahman v. Ashcroft, 330 F.3d 587, 595 (3d Cir. 2003))
-5-

(emphasis added).

The rule is not an onerous one. We have explained that “so long as an immigration

petitioner makes some effort, however insufficient, to place the Board on notice of a

straightforward issue being raised on appeal, a petitioner is deemed to have exhausted her

administrative remedies.” Lin v. Att’y Gen., 543 F.3d 114, 121 (3d Cir. 2008) (quoting

Joseph v. Att’y Gen., 465 F.3d 123, 126 (3d Cir. 2006)). In Bhiski v. Ashcroft, 373 F.3d

363, 367-68 (3d Cir. 2004), for example, we concluded that where an immigration

petitioner failed to argue a straightforward issue in a brief submitted to the BIA, but had

put the BIA on notice of the issue by presenting it in his notice of appeal, the claim was

sufficiently exhausted. We explained that “if the issue is not complex, no brief is

required as long as the notice of appeal does precisely what it is intended to do—place the

BIA on notice of what is at issue.” Id. at 368; see also Yan Lan Wu v. Ashcroft, 393 F.3d

418, 422 (3d Cir. 2005). 

At the same time, although the exhaustion requirement is not to be applied “in a

draconian fashion,” Lin, 543 F.3d at 121, an immigration petitioner is at minimum

required to “alert the Board to the issue he seeks to raise” before this Court. 

Abdulrahman, 330 F.3d at 595. Where petitioners have failed to provide the Board with

the requisite notice, we have not hesitated to dismiss the unexhausted claims. See id.; cf.

Lin, 543 F.3d at 122 (concluding that the petitioner failed to exhaust a claim by putting

BIA on notice, but exercising jurisdiction because the Board considered the issue sua
-6-

sponte). The question is whether the petitioner has “set forth sufficient facts and law to

inform the BIA of the basis for the appeal” so as to give the Board the “opportunity to

resolve issues raised before it prior to any judicial intervention.” Hoxha, 559 F.3d at 163

(citation omitted). 

Having reviewed Woghiren’s notice of appeal and the brief he submitted to the

BIA, we conclude that Woghiren failed to give the BIA notice of his claim that the IJ

failed to inform him of his potential eligibility for suspension of deportation, and that he

therefore failed to exhaust the claim he seeks to argue before us. It is true, as Woghiren

argues, that both his appeal to the BIA and his argument reference the same federal

regulation—8 C.F.R. § 1240.11(a)(2), which requires immigration judges to inform

persons in immigration proceedings of their potential eligibility for relief. 

We agree with the Government, however, that Woghiren’s argument in this appeal,

as to how the IJ ran afoul of 8 C.F.R. § 1240.11(a)(2), is sufficiently different from the §

1240.11(a)(2) issue raised before the BIA that Woghiren cannot be said to have “alert[ed]

the Board to the issue he [now] seeks to raise.” Abdulrahman, 330 F.3d at 595. In his

appeal before the BIA, Woghiren contended that the IJ erred by failing to inform him of

his possible eligibility for cancellation of removal, see 8 U.S.C. § 1229b(b), an argument

the BIA rejected on the grounds that Woghiren was not eligible for cancellation. Now,

for the first time, Woghiren contends that the IJ should have informed him of his potential

eligibility for a different form of relief, suspension of deportation. See 8 U.S.C. § 1254
-7-

(1996). As we have recognized, cancellation of removal and suspension of deportation

are distinct avenues of relief, applicable in different settings and with different

requirements. See, e.g., Hernandez v. Gonzales, 437 F.3d 341, 345 (3d Cir. 2006). 

Neither the words “suspension of deportation” nor the applicable statutory provision

appear in any of the materials Woghiren submitted to the BIA. We agree with the

Government that “[w]ithout petitioner actually presenting his argument to the Board

regarding this entirely different form of relief, the Board can hardly be faulted for not

addressing the possible error petitioner now asserts was committed below.” (Gov’t Br.

17.) While the administrative exhaustion requirement is not onerous, we certainly cannot

find it satisfied where a petitioner’s submissions to the BIA are entirely silent as to the

precise issue raised before us. See Abdulrahman, 330 F.3d at 595. Because Woghiren

did not exhaust the claim he seeks to raise herein, we lack jurisdiction to further entertain

his petition for review. See Hoxha, 559 F.3d at 159 n.3.

III.

For the foregoing reasons, we will dismiss the petition for review.