Taoheed Ajao v. William Barr, U. S. Atty Gen

Case: 18-60234 Document: 00515050636 Page: 1 Date Filed: 07/26/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-60234 July 26, 2019
Summary Calendar
Lyle W. Cayce
Clerk
TAOHEED OLABIYI AJAO, also known as Taoheed Ajao, also known as
Michael Smith,
Petitioner
v.
WILLIAM P. BARR, U.S. ATTORNEY GENERAL,
Respondent
Petitions for Review of an Order of the
Board of Immigration Appeals
BIA No. A055 581 694
Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Taoheed Olabiyi Ajao, a native and citizen of Nigeria, originally entered
the United States as a lawful permanent resident. When he returned from a
trip to Nigeria in 2013, he was paroled into the United States and was
prosecuted for crimes he committed before he left the United States. He was
subsequently convicted of the fraudulent use or possession of identifying
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-60234
information in violation of Texas Penal Code § 32.51(c)(2) and three counts of
credit or debit card abuse in violation of Texas Penal Code § 32.31. Later, he
was again convicted of the fraudulent use or possession of identifying
information in violation of § 32.51.
Currently, Ajao has two petitions for review before us. Ajao’s petition for
review filed in February 2018 was not timely filed as to the November 2017
decision of the Board of Immigration Appeals (BIA); thus, we do not have
jurisdiction to review that decision. See 8 U.S.C. § 1252(b)(1); Kane v. Holder,
581 F.3d 231, 237 n.14 (5th Cir. 2009). His petitions for review of the March
2018 and the September 2018 decisions were timely filed within the 30-day
period and, therefore, jurisdiction to review those decisions is proper. See
Kane, 581 F.3d at 237 n.14.
Regarding the BIA’s denial of his motion for reconsideration, Ajao does
not identify any error in the BIA’s decision. Accordingly, he has waived any
argument that the BIA erred in denying his motion for reconsideration by
failing to brief it adequately. See Sharma v. Holder, 729 F.3d 407, 411 n.1 (5th
Cir. 2013).
Ajao did not show that the BIA abused its discretion in denying his first
motion to reopen based on ineffective assistance of counsel. He concedes that
he did not comply with the requirements of Matter of Lozada, 19 I. & N. Dec.
637 (BIA 1988). We may not consider his argument that the attorney who filed
the motion to reopen was ineffective for failing to comply with Lozada because
Ajao did not present this argument to the BIA. See Omari v. Holder, 562 F.3d
314, 318-19 (5th Cir. 2009). The BIA did not err in holding that Ajao failed to
show he was prejudiced by his counsel’s error. See Mai v. Gonzales, 473 F.3d
162, 165 (5th Cir. 2006). Ajao’s convictions constituted crimes involving moral
turpitude (CIMT) because they involved the intent to harm or defraud. See
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No. 18-60234
Nino v. Holder, 690 F.3d 691, 696 (5th Cir. 2012). Because Ajao was charged
with an offense constituting a CIMT, he was properly treated as an arriving
alien when he returned to the United States in 2013. See Munoz v. Holder,
755 F.3d 366, 370 (5th Cir. 2014). We may not consider his argument that his
deferred adjudications were not final convictions because he did not present it
to the BIA. See Omari, 562 F.3d at 318-19. Thus, Ajao did not demonstrate
that, but for his counsel’s error, there is a reasonable likelihood that he would
have been entitled to immigration relief. See Mai, 473 F.3d at 165. For the
same reasons, he has not shown that the BIA abused its discretion in denying
his second motion to reopen.
Finally, Ajao’s remaining arguments lack merit. He may not collaterally
attack his criminal convictions in a petition for review. See Singh v. Holder,
568 F.3d 525, 528 (5th Cir. 2009). He has not shown that his due process rights
were violated because he was removed from the United States while his
petition for review was pending. See Nken v. Holder, 556 U.S. 418, 424-25
(2009).
In view of the foregoing, Ajao’s petitions for review are DENIED IN
PART and DISMISSED IN PART for lack of jurisdiction. His motion for
appointment of counsel is DENIED.
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