Ogbolu v. Bureau of Immigration & Customs Enforcement

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 31, 2005
Charles R. Fulbruge III
No. 04-20597 Clerk
Summary Calendar
EDWIN OGWUGWUA OGBOLU,
Petitioner-Appellant,
versus
BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CV-5021
--------------------
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Edwin Ogwugwua Ogbolu, a native and citizen of Nigeria,
appeals the district court’s dismissal of his 28 U.S.C. § 2241
petition for lack of subject matter jurisdiction. Ogbolu argues
that the Board of Immigration Appeals (BIA) violated his due
process rights by failing to notify him of its denial of his
appeal of the removal order and as a result his motion to reopen
was filed late and denied as untimely. The BIA denied his motion
to reopen as untimely; in the alternative, the BIA denied his
motion because Ogbolu had failed to show meaningful changes in
Nigerian conditions since the Immigration Judge’s decision and
*
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this opinion should not be published and is not precedent except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. 04-20597
-2-
because he failed to show that it was more likely than not that
he would be tortured if he returned to Nigeria. Because the BIA
indicated that it would have denied the motion even if it had
been timely filed, Ogbolu has not shown that he suffered
substantial prejudice as a result of the BIA’s failure to notify
him of its denial of his appeal. See Toscano-Gil v. Trominski,
210 F.3d 470, 473 (5th Cir. 2000).
Ogbolu also challenged the BIA’s factual determination that
he did not show that it was more likely than not that he would be
tortured if he returned to Nigeria. Ogbolu’s disagreement with
the BIA’s underlying factual determinations does not rise to the
level of a due process violation. See id. at 474.
Ogbolu did not allege a cognizable constitutional violation
in his 28 U.S.C. § 2241 petition. Therefore, the district court
did not err in dismissing his habeas petition for lack of
jurisdiction. See Toscano-Gil, 210 F.3d at 473.
For the first time on appeal, Ogbolu argues that: (1) the
BIA violated his equal protection rights by failing to notify him
of its denial of his appeal; and (2) the BIA erred in denying his
motion for a continuance to allow him time to obtain evidence to
support his motion to reopen the removal proceeding. It is well
established that this court ordinarily does not consider issues
raised by the appellant for the first time on appeal. Flores-
Garza v. INS, 328 F.3d 797, 804 n.7 (5th Cir. 2003).
AFFIRMED.