Summary Calendar LAIZA MUZAMHINDO v. Alberto R. Gonzales, U.s. Attorney General

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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
F I L E D
July 25, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-60933
Summary Calendar
LAIZA MUZAMHINDO
Petitioner
v.
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A96 285 551
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Petitioner Laiza Muzamhindo, a native and citizen of Zimbabwe, petitions this
court for review of an order of the Board of Immigration Appeals (BIA) dismissing her
appeal and denying her motion to reopen removal proceedings. Respondent argues
that the petition for review is timely only as to the denial of Muzamhindo’s motion to
reopen. As Muzamhindo’s petition for review was not filed within 30 days of the BIA’s
dismissal of her appeal, her petition for review as to that ruling must be dismissed.

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See 8 U.S.C. § 1252(b)(1); Karimian-Kaklaki v. I.N.S., 997 F.2d 108, 111 (5th Cir.
1993); Bowles v. Russell, 127 S. Ct. 2360, 2366 (2007).
Muzamhindo’s petition for review is timely, however, as to the BIA’s denial of
her motion to reopen. Muzamhindo argues that, at issue is not whether her
applications for asylum, withholding of removal, and relief under the Convention
Against Torture (CAT) were supported by sufficient evidence, but rather whether the
BIA consistently applied its policies. She contends that her son’s successful application
for relief in a separate proceeding, which was based “almost entirely” on her
persecution, is evidence that the BIA’s rejection of her application for relief lacked a
“principled reason,” and thus represented an arbitrary departure from established
agency policy.
Contrary to Muzamhindo’s assertions, her motion to reopen challenged only the
BIA’s denial of her application for asylum. As such, her claims of error in the denial
of her motion to reopen the proceedings as to her applications for withholding of
removal and relief under the CAT are unexhausted. See Wang v. Ashcroft, 260 F.3d
448, 452-53 (5th Cir. 2001). Although an exception to the exhaustion requirement
exists for due process violations, Muzamhindo makes no such argument. See Roy v.
Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004). We thus lack jurisdiction to address these
claims. See Wang, 260 F.3d at 452.
As for her asylum claim, Muzamhindo has not made a prima facie showing that
she suffered past persecution or that she has a well-founded fear of future persecution
such that she would be entitled to asylum at a reopened hearing. See Guevara Flores
v. I.N.S., 786 F.2d 1242, 1247 (5th Cir. 1986); I.N.S. v. Doherty, 502 U.S. 314, 323
(1992); 8 C.F.R. § 208.13 (b). Muzamhindo’s motion to reopen asked the BIA to
overlook its own adverse credibility and evidentiary determinations in favor of an
immigration judge’s credibility and evidentiary determinations from a separate
proceeding involving a different petition. The BIA’s denial of the motion to reopen was
not capricious, without foundation in the evidence, or otherwise so irrational that it is
arbitrary, rather than the result of any perceptible rational approach. See Singh v.

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Gonzales, 436 F.3d 484, 487 (5th Cir. 2006). Accordingly, the petition for review is also
denied in part.
PETITION FOR REVIEW DISMISSED IN PART, DENIED IN PART.

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