Ariwodo v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 28, 2007
Charles R. Fulbruge III
Clerk
No. 06-60108
c/w No. 06-60402
Summary Calendar
MICHAEL ARIWODO,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petitions for Review of an Order of the
Board of Immigration Appeals
BIA No. A29 400 627
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Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Michael Ariwodo, a native and citizen of Nigeria, entered
the United States on a student visa in 1985 and remained beyond
its expiration. He has five children, including three daughters
more than 18 years old and two sons.
PROCEDURAL BACKGROUND
Ariwodo was charged by the Immigration and Naturalization
Service (INS) with removability in 1997. At his hearing before
the immigration judge (IJ) on July 17, 1998, Ariwodo conceded
*
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this opinion should not be published and is not precedent except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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that he was removable but sought cancellation of removal under
8 U.S.C. § 1229b(b)(1). Ariwodo did not seek asylum or
Convention Against Torture (CAT) protection at that time.
The IJ found Ariwodo removable but granted his request for
cancellation of removal under § 1229b(b)(1), reasoning that if
he were removed Ariwodo might take his then-minor daughters with
him to Nigeria where they might be subjected to female genital
mutilation (FGM). INS appealed, and on July 12, 2002, the Board
of Immigration Appeals (BIA) sided with the INS, vacating the
order of the IJ, and ordering Ariwodo removed to Nigeria. The
BIA reasoned that the possible hardship to Ariwodo’s daughters
was speculative given that their mother had full permanent
custody of the girls and that Ariwodo stated that he would not
take his daughters to Nigeria.
Ariwodo petitioned this court, through counsel, for review
of the BIA’s decision, but the case was dismissed for want of
prosecution. Ariwodo remained in the United States beyond his
BIA-ordered date of voluntary departure, was arrested by the
Department of Homeland Security (DHS), and has remained in DHS
custody.
On May 18, 2004, Ariwodo moved the BIA to reopen his case
based on the immigrant visa that recently became available to him
in virtue of his wife’s naturalization. On July 8, 2004, the BIA
denied the motion to reopen as untimely. On August 30, 2004,
Ariwodo filed a motion with the BIA urging it to reconsider its
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July 8, 2004 denial of his motion to reopen. The BIA rejected
this filing as untimely as well on September 12, 2004.
Ariwodo also filed two more petitions for review with this
court in 2004, both of which were dismissed. On September 8,
2005, Ariwodo filed another motion to reopen with the BIA, but on
January 23, 2006, the BIA denied the motion. Meanwhile, Ariwodo
filed a 28 U.S.C. § 2241 habeas petition in federal district
court, but the court denied his request for relief.
Two petitions for review of BIA decisions regarding Ariwodo
are consolidated here. Ariwodo timely filed one petition for
review with this court under docket No. 06-60108 as a challenge
the BIA’s January 23, 2006 denial of his motion to reopen filed
on September 8, 2005. The other petition for review, now under
docket No. 06-60402, was originally filed in this court under
docket No. 05-20928 as a timely appeal from the district court’s
denial of Ariwodo’s § 2241 habeas petition. Because the Real ID
Act “divest[ed] the district courts of jurisdiction over the
habeas petitions of aliens” challenging their orders of removal,
Andrade v. Gonzales, 459 F.3d 538, 542 (5th Cir. 2006), cert.
denied, 127 S. Ct. 973 (2007), this court partially converted
Ariwodo’s appealed § 2241 habeas petition into a petition for
review. Ariwodo then filed a consolidated brief that
incorporated his arguments raised in his § 2241 habeas petition
and brief.
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DISCUSSION
Ariwodo’s petitions raised objections to the BIA’s July 12,
2002 reversal of the IJ’s grant of the discretionary cancellation
of removal under 8 U.S.C. § 1229b(b). The Government correctly
argues that this court lacks jurisdiction to review the BIA’s
denial of such discretionary relief. Congress has specifically
insulated decisions regarding the granting of relief under
§ 1229b from judicial review, 8 U.S.C. § 1252(a)(2)(B)(i), and
this court has interpreted this jurisdiction-stripping statute to
extend to BIA refusals to repoen based on the same grounds.
Rodriguez v. Ashcroft, 253 F.3d 797, 799-800 (5th Cir. 2001).
However, this court generally has jurisdiction to review the
BIA’s determination that Ariwodo is statutorily ineligible for
such relief. § 1252(a)(2)(D).
Ariwodo claims that the treatment of his visa petition and
application for adjustment of status by the United States Customs
and Immigration Services (USCIS) and the BIA violated his rights.
Because this court lacks jurisdiction over the USCIS’s handling
of I-130 visa petitions, Conti v. INS, 780 F.2d 698, 702 (7th
Cir. 1985)), and over the discretionary denial of adjustment of
status, § 1252(a)(2)(B)(i); Hadwani v. Gonzales, 445 F.3d 798,
800 (5th Cir. 2006), this court cannot entertain these claims.
See also Rodriguez, 253 F.3d at 799-800.
Ariwodo’s now-converted habeas petition challenged both the
July 8, 2004 denial of his motion to reopen filed on May 18,
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2004, and the September 17, 2004 denial of his motion to
reconsider filed on August 30, 2004. This court does not have
jurisdiction to entertain Ariwodo’s claims that the INA was
violated and that the BIA was wrong to reverse the IJ’s
cancellation of removal to the extent that these claims
challenge the BIA’s denial of § 1229b discretionary relief.
§ 1252(a)(2)(B)(i). With respect to his claim that the INA was
violated, Ariwodo has not identified any provision of the INA
that the BIA violated in denying his motions to reopen and
reconsider.
Ariwodo’s allegations that his due process rights were
violated when the BIA denied his May 18, 2004 motion to reopen
and his August 30, 2004 motion to reconsider are without merit
because he had no constitutionally protected liberty interest
in the having his case reopened or reconsidered. See INS v.
Doherty, 502 U.S. 314, 323 (1992); Altamirano-Lopez v. Gonzales,
435 F.3d 547, 551 (5th Cir. 2006); 8 C.F.R. § 1003.2(b).
Moreover, Ariwodo had no liberty interest in the underlying
relief sought in Ariwodo’s motions to reopen and reconsider --
adjustment of status and cancellation of removal based on extreme
hardship, respectively. Gutierrez-Morales v. Homan, 461 F.3d
605, 609 (5th Cir. 2006); Ahmed v. Gonzales, 447 F.3d 443, 440
(5th Cir. 2006); § 1229b(b)(1)(D).
Ariwodo’s claim that the denial of his May 18, 2004 motion
to reopen and his August 30, 2004 motion to reconsider violated
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the Administrative Procedure Act (APA) is meritless because the
APA does not apply to the BIA. Ho Chong Tsao v. INS, 538 F.2d
667, 669 (5th Cir. 1976); see also Marcello v. Bonds, 349 U.S.
302, 310 (1955).
Ariwodo’s claims that the BIA abused its discretion in
denying his May 18, 2004 motion to reopen and his August 30, 2004
motion to reconsider are meritless. Because Ariwodo submitted
his May 18, 2004 motion to reopen after the 90-day deadline and
because the exceptions found in § 1003.2(c)(3) to the time and
number limitations do not apply in his case, the BIA did not
abuse its discretion by denying Ariwodo’s motion to reopen as
time-barred. § 1003.2(c)(2); see Singh v. Gonzales, 436 F.3d
484, 487 (5th Cir. 2006). There is no exception to the 30-day
time limit for filing motions to reconsider. See § 1003.2(b)(2).
Ariwodo’s motion to reconsider was filed on September 17,
2004 -- more than 30 days after it was due. His claim that the
BIA abused its discretion in denying his motion to reconsider is
therefore also without merit.
Ariwodo’s ineffective assistance claim in his now-converted
habeas petition relates to the dismissal of his appeal from the
BIA’s reversal of the IJ’s grant of cancellation of removal under
§ 1229b and the failure of his attorney to reopen his case.
Because cancellation of removal and the grant of a motion to
reopen are both forms of discretionary relief, § 1229b;
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Altamirano-Lopez, 435 F.3d at 551, Ariwodo cannot establish a due
process claim for ineffective assistance of counsel in pursuing
that relief. Gutierrez-Morales, 461 F.3d at 609.
Ariwodo’s claim that the IJ violated his due process rights
by failing to advise him of the possibility that he could be
entitled to asylum or protection under the Convention Against
Torture (CAT) based on the prospect of his daughters being
subjected to FGM upon his removal to Nigeria is dismissed as moot
because each of his three daughters is now more than 18 years old
and no longer subject to being removed with Ariwodo. See SEC v.
Med. Comm. for Human Rights, 404 U.S. 403, 405-07 (1972); Bailey
v. Southerland, 821 F.2d 277, 279 (5th Cir. 1987).
Ariwodo argues that his September 8, 2005 motion to reopen
was not untimely under § 1003.2(c)(2) because he did not receive
notice of the BIA’s July 12, 2002 order until late October 2002.
However, Ariwodo’s motion to reopen was filed nearly three years
after he claims to have received notice of the BIA’s decision --
well beyond the 90-day deadline even if equitable tolling applied
until he received actual notice. In fact, Ariwodo’s first motion
to reopen was also filed on May 18, 2004 -- also beyond the 90-
day deadline even assuming it were tolled. Therefore, the BIA
did not abuse its discretion in denying the September 8, 2005
motion to reopen. See Panova-Bohannan v. Gonzales, 157 F. App’x
706, 708-09 (5th Cir. 2005).
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Ariwodo also claims that the time and number limitations on
motions to reopen do not apply in his case because of the
exceptions found in § 1003.2(c)(3). Ariwodo’s case does not fall
within these exceptions. Ariwodo’s removal was not ordered in
absentia, see § 1003.2(c)(3)(i), and the September 8, 2005 motion
to reopen was not “based on changed circumstances arising in the
country of nationality or in the country to which deportation has
been ordered.” § 1003.2(c)(3)(ii). Moreover, the evidence
regarding FGM that Ariwodo presented with his motion to reopen
was available at the time of his removal hearing before the IJ.
See § 1003.2(c)(3)(ii) (requiring that evidence be material and
previously unavailable).
Ariwodo claims that his attorney’s ineffective assistance
during his petition for review before this court tolled the 90-
day deadline for him to file his motion to reopen. This court
has acknowledged a circuit split “as to equitable tolling of
statutory deadlines for ineffective assitance of counsel in
immigration cases.” Panova-Bohannan, 157 F. App’x at 707 n.6.
Even if equitable tolling did apply, Ariwodo’s September 8, 2005
motion to reopen would still have been filed late -- much more
than 90 days after the October 30, 2003 dismissal of that appeal
for want of prosecution. See Ariwodo v. Ashcroft, No. 02-60996,
slip op. (5th Cir. Oct. 30, 2003). Accordingly, the BIA did not
abuse its discretion in rejecting his motion to reopen as
untimely. Panova-Bohannan, 157 F. App’x at 708-09.
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Neither did the BIA err in refusing to address on the merits
some of Ariwodo’s other claims in his September 8, 2005 motion to
reopen because those claims were procedurally barred. See
§ 1003.2(c)(3).
In addition, this court need not address the BIA’s finding
that Ariwodo was statutorily ineligible for adjustment of status
or that he was not entitled to withholding of removal, asylum,
and CAT protection, because these claims that the BIA did address
on the merits are also procedurally barred.
Ariwodo claims that the BIA exceeded its authority by
ordering his removal, but the BIA’s removal order was predicated
on its reversal of the IJ’s decision to grant Ariwodo the
discretionary relief of cancellation of removal and gave effect
to the IJ’s order that Ariwodo was removable. “Such disposition
does not offend the scope of the powers granted to the BIA by
either Congress or the Attorney General.” Delgado-Renua v.
Gonzales, 450 F.3d 596, 601 (5th Cir. 2006) (internal quotation
marks and citation omitted).
Ariwodo’s motion for injunctive relief to prevent the
Government from continuing to detain him without bond pursuant to
8 U.S.C. § 1226(c) is misplaced and will be denied. The BIA’s
entry of a final removal order against him shifted the Attorney
General’s authority to detain him to 8 U.S.C. § 1231.
Because the Government received an extension of time to file
its brief through October 3, 2006, and mailed its brief on that
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day, Ariwodo’s motion to strike the Government’s brief as
untimely is denied. See FED. R. APP. P. 25(a)(2)(B)(i).
CONSOLIDATED PETITIONS FOR REVIEW DISMISSED IN PART AS MOOT
AND DENIED IN PART; MOTION FOR INJUNCTIVE RELIEF DENIED; MOTION
TO STRIKE DENIED.