Dorothy Nyam v. Merrick Garland

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 28, 2022
• Docket: 21-2028
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-2028

DOROTHY EMBELI NYAM, a/k/a Nyam Dorothy Embeli,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Submitted: April 26, 2022 Decided: April 28, 2022

Before AGEE and THACKER, Circuit Judges, and FLOYD, Senior Circuit Judge.

Petition denied in part and dismissed in part by unpublished per curiam opinion.

ON BRIEF: Godwill C. Tachi, TACHI LAW FIRM, L.L.C., Greenbelt, Maryland, for Petitioner. Brian M. Boynton, Acting Assistant Attorney General, Jennifer Levings, Assistant Director, Sarah A. Byrd, Senior Litigation Counsel, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Dorothy Embeli Nyam, a native and citizen of Cameroon, petitions for review of an

order of the Board of Immigration Appeals dismissing Nyam’s appeal of the immigration

judge’s oral decision denying Nyam’s application for protection under the Convention

Against Torture (CAT) and ordering her removed to Cameroon. Before us, Nyam asserts

that, in conducting the underlying merits hearing, the immigration judge violated due

process. As explained below, we deny the petition in part and dismiss it in part for lack of

jurisdiction.

Removal proceedings are subject to the requirements of procedural due process.

Rusu v. INS, 296 F.3d 316, 320 (4th Cir. 2002). To establish a due process violation, Nyam

“must demonstrate (1) that a defect in the proceeding rendered it fundamentally unfair and

(2) that the defect prejudiced the outcome of the case.” Nardea v. Sessions, 876 F.3d 675,

681 (4th Cir. 2017) (internal quotation marks omitted). We will find prejudice “only when

the rights of an alien have been transgressed in such a way as is likely to impact the results

of the proceedings.” Id. (internal quotation marks omitted).

Nyam first asserts that the immigration judge violated due process by improperly

excluding testimony from Mr. Jonas Muwud. Review of the record confirms that

Mr. Muwud was intended to corroborate Nyam’s involvement with the Southern

Cameroons National Council since living in the United States, which was relevant to claims

for asylum and withholding of removal that Nyam had previously withdrawn. The record

also confirms that, when asked by the immigration judge as to the witness’s continued

relevance, Nyam’s then-attorney agreed that Mr. Muwud’s testimony was not necessary to

2 Nyam’s CAT claim as it would have been duplicative of other record evidence of country

conditions. We thus conclude that there was no such defect in the underlying proceedings.

The due process challenge also fails because the claimed unfair prejudice is specious

at best. Even now, Nyam makes no real effort to identify what evidence Mr. Muwud would

have offered that was (a) not duplicative of the other record evidence, which included Mr.

Muwud’s affidavit and evidence describing conditions for Anglophones living in

Cameroon; or (b) relevant to Nyam’s individual situation. We therefore agree with the

Attorney General that this aspect of Nyam’s claim fails on both prongs of the due process

analysis. Accordingly, we deny the petition for review in part for the reasons stated by the

Board. See In re Nyam (B.I.A. Aug. 23, 2021).

Nyam also contends that the immigration judge violated due process by prejudging

her case and (a) failing to afford Nyam the opportunity to explain the evidentiary

inconsistencies identified by the immigration judge; and (b) allegedly forcing Nyam to

withdraw her applications for asylum and withholding of removal. But Nyam did not raise

these arguments in her administrative appeal to the Board, which instead focused on the

immigration judge’s substantive rationale for denying her CAT claim and the allegedly

improper exclusion of Mr. Muwud’s testimony.

A noncitizen must exhaust “all administrative remedies available to [her] as of

right” before filing a petition for review of a final order of removal. 8 U.S.C. § 1252(d)(1).

A noncitizen who does not “adequately raise” a particular claim before the Board fails to

exhaust that claim. Perez Vasquez v. Garland, 4 F.4th 213, 229 (4th Cir. 2021); see

Tiscareno-Garcia v. Holder, 780 F.3d 205, 210 (4th Cir. 2015). Because Nyam did not

3 exhaust these aspects of her due process claim on appeal to the Board, we lack jurisdiction

to consider them. Cabrera v. Barr, 930 F.3d 627, 631 (4th Cir. 2019) (“[A]rguments that

a petitioner did not raise in the [Board] proceedings have not been exhausted and th[is]

Court lacks jurisdiction to consider them.”). We therefore dismiss the petition for review

in part for lack of jurisdiction.

Accordingly, we deny Nyam’s petition for review in part and dismiss it in part. We

dispense with oral argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would not aid the decisional

process.

PETITION DENIED IN PART, DISMISSED IN PART