Babatunde O. Shoyombo v. Loretta E. Lynch , 799 F.3d 1215 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-2649
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Babatunde O. Shoyombo
lllllllllllllllllllllPetitioner
v.
Loretta E. Lynch, Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: June 12, 2015
Filed: August 28, 2015
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Before LOKEN, BYE, and KELLY, Circuit Judges.
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LOKEN, Circuit Judge.
Babatunde Shoyombo, a native of Nigeria, entered the United States illegally
in July 1993 and fraudulently filed two asylum applications in different names in
1993 and 1995. The second application, in his own name, was denied and he was
ordered deported in absentia in November 1995. Shoyombo remained in the United
States and married a United States citizen. His second motion to reopen, filed while
he applied for adjustment of status, was granted in February 2002. However, after the
Department of Homeland Security (“DHS”) discovered Shoyombo had previously
filed a second asylum application, the proceedings were reopened on the Immigration
Court’s own motion. After a hearing, the immigration judge denied adjustment of
status but granted Shoyombo’s request for voluntary departure. DHS appealed the
latter ruling. The BIA affirmed in a January 19, 2010, order that gave Shoyombo
sixty days to leave the United States. He did not depart, instead marrying a second
United States citizen on February 1, 2010. His attorney filed a new I-130 Visa
Petition on March 12, 2010, but failed to file a third motion to reopen the removal
proceedings and apply for adjustment of status.
Immigration and Customs Enforcement arrested Shoyombo in March 2012. He
hired a new attorney and filed a grievance against his former attorney. In December
2013, a new I-130 application was approved. In March 2014, Shoyombo filed a third
motion to reopen his removal proceedings to request adjustment of status based on
the approved I-130 Visa Petition, admitting the motion was untimely but asserting
that the delay was due to the previous attorney abandoning his case. He now petitions
for review of the Board of Immigration Appeals (“BIA”) decision denying the third
motion to reopen. We dismiss the petition for review.
The Immigration and Nationality Act provides that an alien “may file one
motion to reopen [removal] proceedings” which “shall be filed within 90 days of the
date of entry of a final administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(A)
& (C)(i); see 8 C.F.R. § 1003.2(c)(1) & (2). We have jurisdiction to review a BIA
order denying a motion to reopen filed under § 1003.2(c) of the regulations. Tamenut
v. Mukasey, 521 F.3d 1000, 1003 (8th Cir. 2008) (en banc).
The Attorney General’s regulations also provide that the BIA “may at any time
reopen or reconsider on its own motion any case in which it has rendered a decision.”
8 C.F.R. § 1003.2(a). Because the decision to reopen sua sponte under § 1003.2(a)
is explicitly left to the BIA’s discretion, with “no meaningful standard” against which
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to judge the exercise of that discretion, we -- like ten of our sister circuits -- have held
that we lack jurisdiction to review the denial of a motion asking the BIA to exercise
its § 1003.2(a) discretion and reopen a removal proceeding sua sponte. Tamenut, 521
F.3d at 1004-05. Thus, our jurisdiction to review the denial of Shoyombo’s motion
to reopen turns on whether the BIA denied a statutory motion to reopen under 8
U.S.C. § 1229a(c)(7), or a motion asking the agency to exercise its 8 C.F.R.
§ 1003.2(a) sua sponte discretion. See Mata v. Lynch, 135 S. Ct. 2150, 2154-55
(2015); Ortega-Marroquin v. Holder, 640 F.3d 814, 819-20 (8th Cir. 2011).
Shoyombo’s March 2014 Motion to Reopen acknowledged that it was not a
statutory motion filed under 8 U.S.C. § 1229a(c)(7) because “Mr. Shoyombo has
already filed a Motion to Reopen previously.” Accordingly, the Motion requested
“that the [BIA] reopen his proceedings on their own motion.” Shoyombo argued that
his present predicament was the result of a former attorney’s ineffective assistance.
Expressly stating that Shoyombo was requesting “reopening sua sponte” under 8
C.F.R. § 1003.2(a), the BIA denied the motion because “[t]he record as a whole,
which includes evidence of extensive fraud on the part of the respondent, does not
demonstrate an exceptional situation that warrants reopening sua sponte.”
In his petition for review to this court, Shoyombo argues the BIA improperly
failed to treat his motion as one based on ineffective assistance of counsel1 and failed
to render a reasoned decision. However, because Shoyombo based his motion to
reopen, and the BIA based its decision, exclusively on the agency’s sua sponte
1
The BIA correctly noted that Shoyombo did not base his motion on Matter of
Lozada, 19 I&N Dec. 637 (BIA), aff’d, 857 F.2d 10 (1st Cir. 1988), in which the BIA
adopted standards for claims of ineffective assistance of counsel in immigration
proceedings. Nor did Shoyombo seek equitable tolling from a time-barred statutory
motion to reopen based on the ineffective assistance of his former attorney. A claim
of equitable tolling was rejected on the merits by the BIA in Mata, which was the
basis for the Supreme Court’s jurisdictional ruling. 135 S. Ct. at 2153-55.
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authority under 8 C.F.R. § 1003.2(a), we lack jurisdiction to review that decision.
Accordingly, we dismiss the petition for review. See Tamenut, 521 F.3d at 1004-05.
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