Michael Ogwude v. Loretta Lynch ( 2016 )


Menu:
  •      Case: 14-60869      Document: 00513517230         Page: 1    Date Filed: 05/23/2016
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 14-60869                          FILED
    Summary Calendar                    May 23, 2016
    Lyle W. Cayce
    Clerk
    MICHAEL EMORDI OGWUDE,
    Petitioner
    v.
    LORETTA LYNCH, U.S. ATTORNEY GENERAL,
    Respondent
    Petition for Review of an Order of the
    Board of Immigration Appeals
    BIA No. A078 141 077
    Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
    PER CURIAM: *
    Michael Emordi Ogwude, a native and citizen of Nigeria, has filed a
    petition for review of the Board of Immigration Appeals’ (BIA) order affirming
    the denial of his second motion to reopen his removal proceedings. The BIA
    denied the motion because it was time and number barred by 8 U.S.C.
    § 1229a(c)(7)(A)(i) and (c)(7)(C)(i).
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-60869   Document: 00513517230     Page: 2   Date Filed: 05/23/2016
    No. 14-60869
    Ogwude contends that the BIA should have equitably tolled the 90-day
    time limitation set forth in § 1229a(c)(7)(C)(i), from the BIA’s dismissal of his
    appeal in October 2005 until he filed his second motion to reopen in July 2014,
    because he was diligent in pursuing his ineffective assistance claims.
    Motions to reopen removal proceedings are disfavored, and the moving
    party must satisfy a heavy burden. Altamirano-Lopez v. Gonzales, 
    435 F.3d 547
    , 549 (5th Cir. 2006) (per curiam). In reviewing the BIA’s denial of a motion
    to reopen, we generally apply a highly deferential abuse-of-discretion
    standard. 
    Id. It is
    undisputed that the motion to reopen at issue was Ogwude’s second
    such motion and that it was filed more than nine years after the BIA dismissed
    his appeal. Thus, the BIA did not abuse its discretion in denying Ogwude’s
    second motion to reopen as time and number barred under § 1229a(c)(7)(A),
    (c)(7)(C)(i).
    To the extent the BIA determined that Ogwude was not entitled to
    equitable tolling of the time and number limitations, assuming equitable
    tolling is indeed available in the immigration context, the BIA’s determination
    in this regard was also not an abuse of discretion. In other contexts, we have
    recognized that equitable tolling should apply in “rare and exceptional
    circumstances,” United States v. English, 
    400 F.3d 273
    , 275 (5th Cir. 2005),
    and a party seeking to toll a filing deadline must demonstrate diligence,
    Holland v. Florida, 
    560 U.S. 631
    , 649 (2010). Ogwude has failed to establish
    that he diligently pursued and presented his ineffective assistance claims.
    The petition for review is DENIED.
    2
    

Document Info

Docket Number: 14-60869

Judges: Smith, Benavides, Haynes

Filed Date: 5/23/2016

Precedential Status: Non-Precedential

Modified Date: 11/6/2024