Bandele Adekunle Adeniye v. U.S. Attorney General

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-15371
Non-Argument Calendar
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Agency No. A070-853-985
BANDELE ADEKUNLE ADENIYE,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(December 12, 2017)
Before HULL, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Bandele Adeniye, a native and citizen of Nigeria, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen his
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removal proceedings, Immigration and Nationality Act (“INA”) § 240(c)(7), 8
U.S.C. § 1229a(c)(7), 8 C.F.R. § 1003.2(c). After review, we deny the petition.
I. BACKGROUND
A. Admission to the United States and Convictions in 1995 and 2014
In 1989, Adeniye was admitted to the United States on a visitor’s visa, and
in 1993 his status was adjusted to lawful permanent resident (“LPR”).
On June 30, 1995, Adeniye was convicted of possession of stolen mailbox
keys, in violation of 18 U.S.C. § 1704. Adeniye received a 24-month sentence, but
absconded before being taken into custody.
On March 13, 1996, the former Immigration and Naturalization Service
(“INS”) issued a show cause order alleging that Adeniye’s LPR status was
rescinded on that date and that as a result Adeniye was deportable. 1 The INS later
filed a motion to terminate the rescission proceedings, which was granted by an
Immigration Judge (“IJ”) on August 11, 1998.
Adeniye was later apprehended and, in December 2014, he was convicted of
escape, in violation of 18 U.S.C. § 751(a), and of failing to surrender for service of
sentence, in violation of 18 U.S.C. § 3146(a)(2) and (b)(1)(A)(ii). Adeniye was
sentenced to 13 months’ imprisonment for these new offenses.
1
Rescission proceedings are proceedings during which the government (now the
Department of Homeland Security) seeks to rescind the status of a lawful permanent resident.
See INA § 246(a), 8 U.S.C. § 1256(a).
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B. Removal Proceedings and § 212(c) Waiver Application
In 2015, the Department of Homeland Security (“DHS”) began removal
proceedings against Adeniye by issuing a notice to appear (“NTA”). In an
amended NTA, the DHS charged Adeniye as removable under INA
§ 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of an
“aggravated felony” as defined un INA § 101(a)(43)(Q), 8 U.S.C.
§ 1101(a)(43)(Q), that is, an offense relating to a failure to surrender for service of
sentence where the underlying offense “is punishable by imprisonment for a term
of 5 years or more.”
At the first master calendar hearing on August 4, 2015, Adeniye elected to
proceed pro se and admitted his convictions in 1995 and 2014, but argued that his
2014 failure-to-surrender conviction was not an “aggravated felony.” Adeniye also
advised the IJ that he had been in earlier immigration proceedings that were
terminated in 1998.
At subsequent hearings, Adeniye pointed out that he had received only a 24-
month sentence for his underlying 18 U.S.C. § 1704 offense of possession of stolen
mailbox keys, and contended that it was not an offense “punishable by” five or
more years, as required by INA § 101(a)(43)(Q), 8 U.S.C. § 1101(a)(43)(Q). The
IJ explained to Adeniye that the statutory maximum for his § 1704 offense was ten
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years, which made it “punishable by a term of five or more years” within the
meaning of INA § 101(a)(43)(Q), 8 U.S.C. § 1101(a)(43)(Q).
Adeniye disputed the IJ’s interpretation of the term “punishable by” and also
stated that he wanted to apply for relief under former INA § 212(c), 8 U.S.C.
§ 1182(c) (1996). Former § 212(c) provided a waiver of inadmissibility if an
aggravated felon had served five or less years in prison, but was repealed on April
1, 1997. See Alanis-Bustamante v. Reno, 201 F.3d 1303, 1305-07 & n.6 (11th Cir.
2000). 2 Ultimately, the IJ requested the government to brief its position regarding
Adeniye’s removability and eligibility for a § 212(c) waiver, gave Adeniye an
application for a § 212(c) waiver, and continued the hearing. Subsequently,
Adeniye filed an application for § 212(c) relief.
At the final removal hearing on September 1, 2015, the IJ found that
Adeniye was not eligible for a § 212(c) waiver. The IJ explained that the operative
conviction was the one that was the basis for removal, and in Adeniye’s case that
was the 2014 conviction for failure to surrender, which occurred after § 212(c)’s
repeal. Further, Adeniye’s 2014 conviction was an aggravated felony because the
2
In 1996, Congress made significant changes to the INA through both the Antiterrorism
and Effective Death Penalty Act, Pub. L. No. 104-132, Title IV, 110 Stat. 1214 (1996), and the
Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208, Div. C, 110
Stat. 3009-546 (1996). Among other things, Congress repealed § 212(c) and (h), which provided
discretionary relief from deportation in the form of waivers. See generally Cunningham v. U.S.
Att’y Gen., 335 F.3d 1262, 1264-66 (11th Cir. 2003).
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underlying offense for which he failed to surrender to serve his sentence was
“punishable by” up to ten years in prison.
In an oral decision, the IJ found that: (1) Adeniye was removable by clear
and convincing evidence under INA § 237(a)(2)(A)(iii), 8 U.S.C.
§ 1227(a)(2)(A)(iii), because Adeniye was convicted of an aggravated felony as
defined in INA § 101(a)(43)(Q), 8 U.S.C. § 1101(a)(43)(Q); and (2) Adeniye was
not eligible to apply for relief under former INA § 212(c), 8 U.S.C. § 1182(c)
(1996), because his aggravated felony conviction occurred after April 1, 1997, the
date § 212(c) was repealed. Thus, the IJ ordered Adeniye removed from the
United States to Nigeria.
C. BIA Appeal Challenging Only Removability
Represented by counsel, Adeniye appealed to the BIA. In his brief, Adeniye
challenged the IJ’s finding of removability, arguing that his 2014 failure-to-
surrender conviction was not an “aggravated felony” under INA § 101(a)(43)(Q), 8
U.S.C. § 1101(a)(43)(Q), because his sentence for his underlying 1995 mailbox
keys offense was for only 24 months. Adeniye did not challenge the IJ’s
determination that he was ineligible for § 212(c) relief due to his 2014 conviction
and in fact stated that he had conceded his ineligibility before the IJ.
On March 17, 2016 the BIA issued a published decision dismissing
Adeniye’s appeal. On May 2, 2016, the BIA issued an amended published
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decision reaching the same result. Matter of Adeniye, 26 I. & N. Dec. 726 (BIA
2016). The BIA concluded that Adeniye’s argument—that the term of
imprisonment for which the underlying offense was “punishable” should be
determined by the 24-month sentence he was actually ordered to serve, not the 10-
year statutory maximum—ran counter to the “plain meaning of the term
‘punishable,’ which refers to any punishment capable of being imposed.” Id. at
727-28 (internal quotation marks omitted). The BIA also noted that Adeniye’s
argument was inconsistent with the courts’ construction of the term “punishable”
in other contexts to denote “a focus on the maximum penalty that may be imposed
for the offense of conviction, rather than on the penalty that was (or could have
been) imposed upon any particular defendant,” including the Supreme Court’s
interpretation of “any felony punishable” in 18 U.S.C. § 924(c)(2) in Moncrieffe v.
Holder, 569 U.S. ___, 133 S. Ct. 1678 (2013). Id. at 728-29.
The BIA concluded that there was not sufficient reason to stray from the
ordinary meaning of “punishable by.” Id. at 730. Because the maximum penalty
for violating 18 U.S.C. § 1704 was ten years, Adeniye’s underlying offense was
“punishable by imprisonment for a term of 5 years or more,” as set forth in INA
§ 101(a)(43)(Q). Id. As a result, the BIA agreed with the IJ that Adeniye’s failure-
to-surrender conviction was an aggravated felony that rendered him removable. Id.
The BIA noted that “[n]o other issues are presented on appeal.” Id.
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C. First Motion to Reconsider/Reopen Based on § 212(h) Waiver
Adeniye, now pro se, filed a motion to reconsider and to reopen his removal
proceedings so that he could apply for a waiver of inadmissibility under INA
§ 212(h), 8 U.S.C. § 1182(h) (1996). Section 212(h) provides for a discretionary
waiver of inadmissibility for certain criminal aliens based on the hardship to their
U.S. citizen family members. See Poveda v. U.S. Att’y Gen., 692 F.3d 1168, 1173
(11th Cir. 2012). Adeniye argued (for the first time) that he was eligible for a
§ 212(h) waiver and that the IJ had violated his due process rights by failing to
advise him of the possibility of § 212(h) relief.
On May 2, 2016, the BIA denied Adeniye’s motion to reconsider and to
reopen, concluding that he was not “apparently eligible” for a § 212(h) waiver, see
8 C.F.R. § 1240.11(a)(2), because, as a deportable alien in removal proceedings,
Adeniye could not apply for § 212(h) relief “on a stand-alone” basis. See Poveda,
692 F.3d at 1177 (“After 1996, a lawful permanent resident may obtain the waiver
only if he is an applicant for admission or has assimilated to the position of an
applicant for admission by applying for an adjustment of status.”). Therefore, the
IJ was not obligated to permit Adeniye to apply for such relief.
D. Second Motion to Reopen Based on Second § 212(c) Application
Adeniye, still proceeding pro se, filed another motion to reopen his removal
proceedings, this time so that Adeniye could file a second application for a
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§ 212(c) waiver. Adeniye argued that he was eligible for relief under former
§ 212(c) because the government initiated his deportation proceedings prior to
§ 212(c)’s repeal. Adeniye pointed to the government’s show cause order seeking
to rescind his LPR status, and argued that his deportation proceedings commenced
on March 13, 1996, when he was served the show cause order.
Adeniye attached the following relevant documents to his motion to reopen:
(1) the 1996 order to show cause as to why Adeniye should not be deported; (2) the
government’s motion to terminate rescission proceedings from 1998, and the IJ’s
order terminating the proceedings; (3) a 2013 letter from the director of Freedom
of Information Act (“FOIA”) Operations to Adeniye’s former counsel, stating that
a FOIA request was received and was in processing; (4) a 2013 letter from a FOIA
officer to Adeniye’s former counsel, releasing documents under the FOIA request;
and (5) a 2016 letter from Adeniye’s counsel for his BIA appeal, informing
Adeniye that counsel was attempting to obtain copies of Adeniye’s alien file. The
show cause order indicated that it was sent by certified mail to Adeniye in March
1996. The certificate of service from the government’s motion to terminate
rescission proceedings indicated that it was served on counsel or Adeniye on July
22, 1998.
On July 12, 2016, the BIA denied Adeniye’s second motion to reopen. The
BIA determined that (1) the FOIA-request evidence that Adeniye presented was
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served on him before the BIA’s earlier decisions in his case, (2) Adeniye could
have previously presented his current arguments to the IJ or the BIA, and (3) in his
appeal to the BIA, Adeniye had failed to challenge the IJ’s conclusion that he was
ineligible for relief under § 212(c) because his aggravated felony conviction
occurred after April 1, 1997.
II. DISCUSSION
A. Appellate Jurisdiction
In his counseled brief to this Court, Adeniye argues that: (1) the BIA erred
when it dismissed his appeal of the IJ’s final removal order because Adeniye’s
underlying 1995 offense was not “punishable by” a prison term of five or more
years; and (2) in any event, Adeniye is eligible for relief under former INA
§ 212(c) or (h), 8 U.S.C. § 1182(c) or (h) (1996), because his 1995 conviction for
possession of stolen mailbox keys occurred, and his removal proceedings were
initiated, prior to April 1, 1997.
The problem for Adeniye is that the only petition for review presently before
this Court is the one seeking review of the BIA’s denial of his second motion to
reopen. Adeniye did file two other separate petitions for review: (1) a petition for
review of the BIA’s order dismissing his appeal from the IJ’s final removal order;
and (2) a petition for review of the BIA’s order denying his first motion to
reconsider and to reopen. But when Adinye failed to pay the filing fees for those
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earlier petitions, this Court dismissed them for want of prosecution. See Fed. R.
App. P. 15(e) (“When filing any separate or joint petition for review in a court of
appeals, the petitioner must pay the circuit clerk all required fees.”).
Thus, the only petition for review pending before this Court is this one
relating to (and timely filed as to) the BIA’s denial of his second motion to reopen.
See INA § 242(b)(1), 8 U.S.C. § 1252(b)(1) (requiring a petition for review to be
filed within 30 days of the final removal order); Dakane v. U.S. Att’y Gen., 399
F.3d 1269, 1272 n.3 (11th Cir. 2005) (concluding the statutory period for filing a
petition for review is mandatory and jurisdictional). The BIA denied Adeniye’s
second motion to reopen on procedural grounds and did not reach the merits of
either his removability or his eligibility for relief under § 212(c) or (h). Thus, we
lack jurisdiction to address the merits arguments in Adeniye’s brief pertaining to
the BIA’s earlier orders. Cf. Stone v. INS, 514 U.S. 386, 405-06, 115 S. Ct. 1537,
1549 (1995) (explaining that a separate petition for review must be filed for each
final order, and the failure to file a timely petition for review of a final order
deprives the appellate courts of jurisdiction to review that final order); Patel v. U.S.
Att’y Gen., 334 F.3d 1259, 1261 (11th Cir. 2003). 3
3
Although in his reply brief Adeniye asks this Court to reinstate his petitions for review
in Nos. 16-11654 and 16-12879, he has not filed a separate motion seeking reinstatement as
required by Federal Rule of Appellate Procedure 27. Nor has Adeniye paid (or offered to pay)
the filing fees required for those dismissed petitions for review. Accordingly, Adeniye’s request
is denied.
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B. BIA’s Denial of Adeniye’s Second Motion to Reopen
A motion to reopen “shall state the new facts that will be proven at a hearing
to be held if the motion is granted, and shall be supported by affidavits or other
evidentiary material.” INA § 240(c)(7)(B), 8 U.S.C. § 1229a(c)(7)(B). The BIA
may grant a motion to reopen if the petitioner presents new, material evidence that
was not available and could not have been discovered or presented at the removal
hearing. See 8 C.F.R. §§ 1003.2(c)(1), 1003.23(b)(3); Verano-Velasco v. U.S.
Att’y Gen., 456 F.3d 1372, 1376-77 (11th Cir. 2006).4
Here, the BIA denied Adeniye’s second motion to reopen because: (1)
Adeniye’s “new evidence” was available and could have been presented at an
earlier stage in his immigration proceedings; and (2) in his counseled appeal to the
BIA, Adeniye failed to challenge the IJ’s ruling that he was ineligible for a former
§ 212(c) waiver. Adeniye’s brief to this Court does not challenge these procedural
reasons for denying his motion. Thus he has abandoned review of the BIA’s order
denying his second motion to reopen. See Sepulveda v. U.S. Att’y Gen., 401 F.3d
1226, 1228 n.2 (11th Cir. 2005) (explaining that issues not raised on appeal, or
raised only in passing reference, are deemed abandoned).
Even if review were not abandoned, the BIA did not abuse its discretion in
denying the second motion to reopen because its reasons are supported by the
4
We review the denial of a motion to reopen for an abuse of discretion. Jiang v. U.S.
Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009).
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record. As the BIA noted, the IJ addressed Adeniye’s eligibility for a § 212(c)
waiver by finding him ineligible because his aggravated felony conviction
occurred after April 1, 1997. Adeniye has never disputed that his felony
conviction for failure to surrender to serve sentence occurred in 2014. The BIA
also noted that Adeniye had an opportunity to raise his current argument—that he
was eligible for § 212(c) relief because deportation proceedings were initiated
against him on March 13, 1996—before the IJ and in his earlier appeal to the BIA,
but he failed to do so and even conceded to the IJ that he was ineligible for that
form of relief.
The BIA did not err in determining that Adeniye could have raised his
argument about the March 13, 1996 commencement of deportation proceedings
before the IJ or the BIA at an earlier stage in the proceedings. Adeniye informed
the IJ at his first master calendar hearing in the instant case that he had been in
previous immigration proceedings that were terminated in 1998. Thus, he could
have argued as early as that first master calendar hearing in 2015 that he was
eligible for a § 212(c) waiver because his earlier immigration proceedings were
initiated prior to April 1, 1997.
Finally, the BIA did not err in determining that the evidence Adeniye
attached to his second motion to reopen, which related to his terminated rescission
proceedings, was available to him prior to any of the BIA’s orders in this case.
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The 1996 show cause order, the 1998 government motion to terminate rescission
proceedings, and the IJ’s order terminating the rescission proceedings were all
served on or sent to Adeniye or his counsel before the IJ entered his oral decision
in September 2015. Thus, the BIA did not abuse its discretion by determining that
the documents were previously available and could have been presented to the IJ.
PETITION DENIED.
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