Atehnkeng Brain v. Garland, No. 21-60765 (5th Cir. 2022)
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Case: 21-60765 Document: 00516584350 Page: 1 Date Filed: 12/20/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED December 20, 2022 No. 21-60765 Lyle W. Cayce Clerk Foyagem Atehnkeng Brain, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals A203 600 816 Before Jones, Smith, and Graves, Circuit Judges. Per Curiam:* Foyagem Atehnkeng Brain (“Foyagem”), a native and citizen of Cameroon, timely petitions us for review of the Board of Immigration Appeals’ denial of his motion for reconsideration. Foyagem argues that the Board and the Immigration Judge assigned to his case abused their discretion by applying the wrong standard when considering his eligibility for asylum. * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 21-60765 Document: 00516584350 Page: 2 Date Filed: 12/20/2022 No. 21-60765 Further, he argues that this improper application violated his right to due process. This court reviews the denial of a motion to reconsider under an abuse-of-discretion standard. Gonzales-Veliz v. Barr, 938 F.3d 219, 226 (5th Cir. 2019). A motion to reconsider must “‘specify the errors of law or fact in the previous order and . . . be supported by pertinent authority.’” Gonzalez Hernandez v. Garland, 9 F.4th 278, 283 (5th Cir. 2021) (quoting 8 U.S.C. § 1229a(c)(6)(C)), cert. denied, 143 S. Ct. 86 (2022). The Board’s decision will stand unless it was “capricious, racially invidious [or] utterly without foundation in the evidence.” Zhao v. Gonzales, 404 F.3d 295, 304 (5th Cir. 2005) (quoting Pritchett v. INS, 993 F.2d 80, 83 (5th Cir. 1993)). Upon review, we find no abuse of discretion. The Board does not abuse its discretion in denying a motion to reconsider when the petitioner repeats arguments the Board has already rejected. Clavel-Avelar v. Garland, 858 F. App’x 795, 796 (5th Cir. 2021). Further, we do not find that Foyagem has identified a misapplication in law. The Board correctly held that arguments regarding the Immigration Judge’s opinion are not properly presented in a motion to reconsider. See Chambers v. Mukasey, 520 F.3d 445, 448 (5th Cir. 2008); Matter of O-S-G-, 24 I. & N. Dec. 56, 58 (BIA 2006). Finally, we lack jurisdiction to consider the due process argument because it was not raised before the Board during the initial appeal or the motion for reconsideration and is accordingly unexhausted. See Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004). For the foregoing reasons, the petition for review is DENIED IN PART, DISMISSED IN PART. 2
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