Obinna Ezeokoli v. Loretta Lynch

Case: 14-60698 Document: 00513344919 Page: 1 Date Filed: 01/15/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-60698
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
January 15, 2016
OBINNA IKENNA EZEOKOLI,
Lyle W. Cayce
Clerk
Petitioner
v.
LORETTA LYNCH, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A087 036 429
Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
Obinna Ikenna Ezeokoli, a citizen and native of Nigeria, petitions this
court for review of the order of the Board of Immigration Appeals (BIA) denying
his motion to reopen his removal proceedings to seek adjustment of status
under the Violence Against Women Act (VAWA). Ezeokoli argues that the BIA
erred by dismissing his motion to reopen as untimely. He maintains that the
one-year statute of limitations applied by the BIA does not apply to him
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 14-60698
because he was physically present in the United States at the time of the filing
of the motion to reopen and has been in the United States continuously since
2007. He asserts that the one-year statute of limitations does not apply to him
pursuant to 8 U.S.C. § 1229a(c)(7)(A) because he was in removal proceedings
and the motion to reopen was for adjustment of status under the VAWA.
In reviewing the BIA’s “denial of a motion to reopen, this court applies a
highly deferential abuse-of-discretion standard.” Gomez-Palacios v. Holder,
560 F.3d 354, 358 (5th Cir. 2009). The BIA does not abuse its discretion in
denying a motion to reopen if the denial “is not capricious, without foundation
in the evidence, or otherwise so irrational that it is arbitrary rather than the
result of any perceptible rational approach.” Id.The normal 90-day time period for filing a motion to reopen does not
apply to a battered spouse seeking relief under the VAWA if, and only if, all
four of the conditions listed in the statute are met. See § 1229a(c)(7)(C)(iv).
Thus, while Ezeokoli was physically present in the United States at the time
of the filing of the motion to reopen and this is one of the required conditions
for the suspension of the normal 90-day limitations period for filing a motion
to reopen, see § 1229a(c)(7)(C)(iv)(IV), Ezeokoli’s motion to reopen was still
untimely because he did not file it within one year of the entry of the final order
of removal. See § 1229a(c)(7)(C)(iv)(III). Ezeokoli’s reliance on § 1229a(c)(7)(A)
is misplaced because that provision concerns the numerical limitation on
motions to reopen, and it does not concern the time limitations for motions to
reopen. See § 1229a(c)(7)(A). As Ezeokoli’s motion to reopen was not filed
within one year of the entry of the final order of removal, the BIA correctly
determined that it was untimely, and Ezeokoli could only obtain relief if the
BIA waived the time limitation because he showed extraordinary
circumstances or extreme hardship to his child. See § 1229a(c)(7)(C)(iv)(III).
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Ezeokoli argues that the BIA abused its discretion by ruling that he had
not shown extraordinary circumstances justifying the waiver of the limitations
period. He maintains that he was not able to file his motion to reopen within
one year of the entry of the final order of removal because he did not file his I-
360 petition under the VAWA within one year of the final entry of removal. He
contends that the BIA has not updated its regulations since the passage of the
VAWA and regularly fails to consider the special circumstances surrounding
petitions under the VAWA. According to Ezeokoli, the mistreatment and
battering he received at the hands of his wife constituted extraordinary
circumstances justifying the waiver of the limitations period.
We do not have jurisdiction to review a decision of the BIA in a removal
proceeding, except for an asylum ruling, “which is specified under [the relevant
subchapter at issue in this case] to be in the discretion of the Attorney General
or the Secretary of Homeland Security.” 8 U.S.C. § 1252(a)(2)(B)(ii). We retain
jurisdiction to consider “constitutional claims or questions of law.”
§ 1252(a)(2)(D).
The statutory provision at issue here specifies that the time limitation
may be waived “in the Attorney General’s discretion.” § 1229a(c)(7)(C)(iv)(III).
Thus, the ruling that Ezeokoli is seeking to challenge is a discretionary
determination that we do not have jurisdiction to consider. See
§ 1252(a)(2)(B)(ii); Kucana v. Holder, 558 U.S. 233, 237 (2010); Joseph v.
Lynch, 793 F.3d 739, 741 (7th Cir. 2015). We do not have jurisdiction under
§ 1252(a)(2)(D) because Ezeokoli does not raise any constitutional claims or
questions of law. Accordingly, this portion of Ezeokoli’s petition for review is
dismissed. See Ramos-Bonilla v. Mukasey, 543 F.3d 216, 220 (5th Cir. 2008).
PETITION FOR REVIEW DENIED IN PART, DISMISSED IN PART.
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