Ijemba v. Mukasey , 263 F. App'x 407 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 24, 2008
No. 06-60626
Summary Calendar Charles R. Fulbruge III
Clerk
ALEXANDER IFEANYI IJEMBA, also known as Alexa Ijemba
Petitioner
v.
MICHAEL B MUKASEY, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A26 489 985
Before HIGGINBOTHAM, STEWART, and ELROD, Circuit Judges.
PER CURIAM:*
Alexander Ifeanyi Ijemba, a native of Nigeria and a citizen of Nigeria and
the United Kingdom, has filed two petitions for review. Ijemba seeks to
challenge a BIA order issued on June 9, 2006, affirming an immigration judge’s
(IJ) order of removal, construing Ijemba’s challenge to the IJ’s jurisdiction based
on new evidence as a motion to remand, and denying the motion. Ijemba also
seeks to challenge a BIA order issued on August 7, 2006, denying his motion for
reconsideration of its prior decision.
*
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should not be published and is not precedent except under the limited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.
No. 06-60626
Ijemba filed his initial petition for review on July 5, 2006, within 30 days
of the BIA’s June 9, 2006, order. That petition is properly before this court and
vests this court with jurisdiction to consider the June 9, 2006, order. 8 U.S.C.
§ 1252(b)(1). Ijemba attempted to challenge both the June 9 and the August 7,
2006, orders in his brief supporting his July 5 petition for review. This court
lacks jurisdiction to review the BIA’s August 7 denial of Ijemba’s motion for
reconsideration because Ijemba did not file a separate and timely petition for
review of that decision; he only disputed that decision in his supporting brief.
See Guevara v. Gonzales, 450 F.3d 173, 176 (5th Cir. 2006) (quoting
Jaquez-Vega v. Gonzales, 140 Fed.Appx. 547 (5th Cir. Aug. 5, 2005)
(unpublished)) (recognizing that “‘[t]he BIA’s denial of an appeal and its denial
of a motion to reconsider are two separate final orders, each of which require
their own petitions for review’”); Karimian-Kaklaki v. INS., 997 F.2d 108, 111
(5th Cir. 1993). Ijemba filed his second petition for review on December 11,
2006, more than 30 days after either of the BIA’s orders. The Respondent’s
motion to dismiss that petition for lack of jurisdiction is granted. See 8 U.S.C.
§ 1252(b)(1).
Ijemba has not shown that the BIA in its June 9 order erred by construing
his challenge to the IJ’s jurisdiction based on new evidence as a motion to
remand or by rejecting that motion on grounds that apply to motions to reopen.
See Ramchandani v. Gonzales, 434 F.3d 337, 340 n.6 (5th Cir. 2005) (where
circumstances permit, motions to remand and reopen are “subject to the same
standards and regulations”); see also Ogbemudia v. INS, 988 F.2d 595, 600 (5th
Cir. 1993) (affirming the BIA’s characterization of plaintiff’s motion as a motion
to remand and its simultaneous consideration of that motion as a motion to
reopen). Nor has Ijemba shown that the BIA abused its discretion in denying
the motion to remand. Ijemba argued that the immigration court in Oakdale,
Louisiana, lacked jurisdiction to order his removal because the government had
already instituted deportation proceedings against him in Phoenix, Arizona.
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No. 06-60626
Ijemba failed to explain why he did not present this evidence during his removal
proceedings. See id. at 601 (rejecting a challenge to the BIA’s denial of a motion
to reopen partially because the new evidence that plaintiff submitted was
available when deportation proceedings occurred). Moreover, although Ijemba
acknowledges that the commencement of deportation proceedings requires the
filing of an order to show cause, he has not shown that an order to show cause
was filed in the Phoenix immigration court.
Finally, we are not persuaded that the BIA erred in affirming the IJ’s
order of removal based on his 1991 criminal convictions. Ijemba’s argument that
his criminal convictions were not sufficiently final to support a removal order is
unavailing. Even if a conviction must be final to support an order of removal –
a contention that we have recently questioned1 – the BIA did not err in finding
that his conviction was final.2
Ijemba has not shown that the BIA erred in denying his appeal from the
IJ’s order of removal, erred in construing his challenge to the IJ’s jurisdiction as
a motion to remand in the nature of a motion to reopen, or abused its discretion
in denying that motion. His initial petition for review is denied.
INITIAL PETITION DENIED; MOTION TO DISMISS GRANTED;
SECOND PETITION DISMISSED.
1
See Moosa v. INS, 171 F.3d 994, 1008-09 (5th Cir. 1999).
2
The Ninth Circuit affirmed Ijemba’s conviction on direct appeal. Ijemba
argued that the affirmance was unconstitutional because he did not have counsel
on appeal. The BIA found that Ijemba had initially requested counsel but then
filed a motion with the Ninth Circuit to proceed pro se, which the court granted.
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