* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

May 10, 2006

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 05-60621

Summary Calendar

BENJI MACAULAY,

Petitioner,

versus

ALBERTO R. GONZALEZ, U.S. ATTORNEY GENERAL,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

(A77 494 645)

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Benji Macaulay petitions for review of the Board of

Immigration Appeals’ (BIA) denial of a motion to reconsider its

affirmance of the Immigration Judge’s (IJ) order that he be removed

to Nigeria. Macaulay challenges whether, under INA § 241(b)(2)(E),

8 U.S.C. § 1231(b)(2)(E), the IJ could designate Nigeria as his

country of removal, when his citizenship and nationality status are

not properly documented.
2

Macaulay has no passport, birth certificate, or other

documents to verify his citizenship. He claims to have been born

in the United States, but his first known residence was in England,

where he was adopted by a Nigerian couple. He later became a ward

of the English foster-care system until, as a teenager, he ran away

to Paris, France. He spent several years in western Europe, during

which time he claimed Nigerian citizenship to obtain cash benefits

granted by the German government to Nigerian asylum-seekers. 

Macaulay entered the United States around 1990 (apparently

using a false passport) and committed credit-card fraud and other

identity-theft crimes. Following his incarceration for these

crimes, the former Immigration and Nationalization Service (INS)

began proceedings to remove him from the United States. (Macaulay

has used nearly two dozen aliases and has claimed various birth

dates, places of birth, social security numbers, and drivers

license numbers.) 

The IJ ordered him removed to Nigeria. Nigeria was deemed

Macaulay’s proper place of removal under 8 U.S.C. § 1231(b)(2).

The BIA affirmed Macaulay’s removal to Nigeria, stating: Macaulay

did not contest either the IJ’s finding that he was not a United

States citizen or that he was removable as charged; he did not

designate a country of removal; he did not provide information

regarding his birth, citizenship, or from where he entered the

United States; and the record included three exhibits indicating

Macaulay was born in Nigeria. Under 8 U.S.C. § 1231(b)(2)(E)(i)-
3

(vi), which includes an alien’s country of birth or prior

residence, Macaulay could be removed to Nigeria without advance

consent of the Nigerian government. Jama v. Immigration & Customs

Enforcement, 543 U.S. 335, 125 S. Ct. 694, 701 (2005) (holding

advance consent is required only for § 1231(b)(2)(E)(vii)). The

BIA denied Macaulay’s motion to reconsider, finding no errors of

fact or law warranting reconsideration. 

The denial of the motion to reconsider is reviewed for abuse

of discretion. Zhao v. Gonzales, 404 F.3d 295, 301 (5th Cir.

2005). “It is our duty to allow [a] decision to be made by the

Attorney General’s delegate ... so long as it is not capricious,

racially invidious, utterly without foundation in the evidence, or

otherwise so aberrational that it is arbitrary rather than the

result of any perceptible rational approach.” Osuchukwu v. INS,

744 F.2d 1136, 1142 (5th Cir. 1984). We review the BIA’s decision,

not the IJ’s. Renteria-Gonzalez v. INS, 322 F.3d 804, 816 (5th

Cir. 2002); see Moin v. Ashcroft, 335 F.3d 415, 418 (5th Cir. 2003)

(“This Court will not reverse a BIA decision unless the petitioner

provides evidence so compelling that no reasonable fact-finder

could conclude against it.”) (internal citation and quotation marks

omitted).

The BIA did not abuse its discretion in denying the motion.

Macaulay was estopped from claiming United States citizenship based

on his prior federal conviction for a false claim to United States
4

citizenship. See Howard v. INS, 930 F.2d 432, 436 (5th Cir. 1991)

(“[B]ecause [petitioner’s] convictions established his status as an

alien and because he has not offered any proof that his status has

changed since [his conviction date], we hold that the issue of his

alienage is collaterally estopped in his deportation

proceedings”.). He has been untruthful in his reports to

authorities, and the only country with which he has consistently

identified is Nigeria. Macaulay did not provide a country of

removal, but this does not mean that he is not removable; the IJ

was forced to select a country for him. Because of the evidence

connecting Macaulay to Nigeria, and his failure in his motion to

reconsider to present any errors of fact or law, the BIA did not

abuse its discretion in denying his motion. Osuchukwu, 744 F.2d at

1142. 

DENIED