Emem Udoh v. Monty Wilkinson ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-2389
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Emem Ufot Udoh
lllllllllllllllllllllPetitioner
v.
Monty Wilkinson, Acting Attorney General of the United States1
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: February 5, 2021
Filed: February 10, 2021
[Unpublished]
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Before LOKEN, COLLOTON, and KOBES, Circuit Judges.
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PER CURIAM.
1
Monty Wilkinson has been appointed to serve as Acting Attorney General of
the United States, and is substituted as respondent pursuant to Federal Rule of
Appellate Procedure 43(c).
Emem Ufot Udoh, a native and citizen of Nigeria, petitions for review of an
order of the Board of Immigration Appeals (BIA) dismissing his appeal from the
immigration judge’s (IJ’s) decision denying Udoh’s motion to reopen removal
proceedings commenced after he was convicted in state court of criminal sexual
misconduct involving minors, and to rescind the April 2019 order of removal entered
in absentia after Udoh received notice but refused to attend two non-evidentiary
hearings. Udoh’s convictions have not been overturned despite extensive litigation
in both state and federal courts. Therefore, our review is limited to constitutional
claims and questions of law. See 8 U.S.C. § 1252(a)(2)(C)-(D); Freeman v. Holder,
596 F.3d 952, 955-57 (8th Cir. 2010) (criminal-alien bar).
Having carefully reviewed the record, we conclude Udoh has not raised a
colorable statutory or constitutional claim. His consent was not required for the IJ to
conduct the videoconference hearings he refused to attend because the alien’s consent
is required only for evidentiary hearings on the merits. See 8 U.S.C. § 1229a(b)(2);
8 C.F.R. § 1003.25(c). His challenges to the notice he received are an attack on the
IJ’s factual findings that we are jurisdictionally barred from reviewing. See Freeman,
596 F.3d at 957, 958 & n.6. His assertion that the BIA violated his right to due
process by denying his second motion for extension of time to file an administrative
appeal brief is without merit. He was not constitutionally entitled to counsel in the
removal proceedings, see Rafiyev v. Mukasey, 536 F.3d 853, 861 (8th Cir. 2008), and
absent a colorable constitutional claim, we lack jurisdiction to review the BIA’s
discretionary refusal to sua sponte reopen the proceedings, see Tamenut v. Mukasey,
521 F.3d 1000, 1004-05 (8th Cir. 2008) (en banc); 8 C.F.R. § 1003.2(a).
Accordingly, we deny the petition for review. We deny as moot the pending
pro se motion for leave to adduce additional evidence and supplement the record.
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