Ohiri v. Gonzales , 233 F. App'x 354 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 18, 2007
Charles R. Fulbruge III
Clerk
No. 06-60839
Summary Calendar
BEATRICE OHIRI, also known as Beatrice Osisi,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A76 833 295
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges,
PER CURIAM:*
Beatrice Ohiri petitions for review of the Board of
Immigration Appeals’s (BIA) denial as untimely of her motion to
reopen removal proceedings. She argues that her failure to
timely file her motion to reopen was the direct result of the
ineffective assistance of her two prior attorneys and that, as a
result, the BIA should reopen her case pursuant to its “sua
sponte” discretionary authority. 8 C.F.R. § 1003.2(a) (“The
Board may at any time reopen or reconsider on its own motion any
case in which it has rendered a 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this opinion should not be published and is not precedent except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. 06-60839
-2-
We review the BIA’s denial of a motion to reopen “under a
highly deferential abuse of discretion standard.” Manzano-Garcia
v. Gonzales, 413 F.3d 462, 469 (5th Cir. 2005). Subject to
certain exceptions, motions to reopen deportation proceedings
must be filed within 90 days of the date of the final
administrative decision. 8 C.F.R. § 1003.2(c)(2) and (c)(3).
Ohiri concedes that her motion was not filed within the 90-day
window and does not argue that an exception to the timeliness
requirement is applicable to her motion to reopen. Accordingly,
the BIA did not err in denying her motion as untimely.
We lack jurisdiction to review Ohiri’s argument that the BIA
erred when it declined to exercise its “sua sponte” authority to
reopen her appeal due to ineffective assistance of counsel.
Where, as conceded here, a motion to reopen is untimely, the
petitioner has but one recourse to open her case: the BIA’s
equitable, discretionary authority to “at any time reopen or
reconsider on its own motion any case in which it has rendered a
decision.” Id. § 1003.2(a). Because this “sua sponte” relief is
entirely discretionary and the BIA is under no obligation to
reopen a case on an untimely motion, this Court lacks
jurisdiction to review the BIA’s denial of equitable relief.
Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 250 (5th Cir. 2004)
(“[A] reviewing court has no legal standard against which to
judge an IJ's decision not to invoke its sua sponte authority . .
No. 06-60839
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. . Because Supreme Court precedent prohibits review of such
discretionary decisions . . . this Court lacks jurisdiction.”).
Ohiri’s claim that her due process right to effective
assistance of counsel was violated is meritless because she has
no liberty interest in an adjustment of status. Gutierrez-
Morales v. Homan, 461 F.3d 605, 609 (5th Cir. 2006). “[W]hen
there is no due process right to the ultimate relief sought,
there is no due process right to effective assistance of counsel
in pursuit of that relief.” Id. Ohiri attempts to distinguish
her case from Gutierrez by explaining that her lawyer’s conduct
was egregious, but the extent of her attorney’s ineffective
conduct is irrelevant to our decision that there is no liberty
interest in an adjustment of status.
The petition for review is DENIED.