Abimbola v. Mukasey

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 30, 2007
No. 06-60872
Summary Calendar Charles R. Fulbruge III
Clerk
RAFIU AJADI ABIMBOLA, also known as Rafiu Ajadi, also known as Rafiu
Abimboca, also known as Tajudean Ajuadi, also known as Rafiu Ambimolajadi
Petitioner
v.
MICHAEL B. MUKASEY, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A72 852 210
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Rafiu Ajadi Abimbola petitions for review of the Board of Immigration
Appeals’ (BIA’s) decision denying his motions to reopen and for reconsideration.
He has also moved for reconsideration of the clerk’s denial of an extension of
time in which to file a reply brief. Abimbola untimely petitioned this court for
review of the BIA’s August 2, 2005, denial of his third motion for
*
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should not be published and is not precedent except under the limited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. 06-60872
reconsideration. 8 U.S.C. § 1252(b)(1). Consequently, we lack jurisdiction to
review the denial of that motion. See Navarro-Miranda v. Ashcroft, 330 F.3d
672, 676-77 (5th Cir. 2003).
Abimbola argues that the BIA erred in determining that he was ineligible
to apply for a waiver of inadmissibility under former Immigration and
Nationality Act § 212(c) and, additionally, that he was erroneously deemed
removable as an aggravated felon. The Second Circuit has already expressly
held that Abimbola’s Connecticut conviction was an aggravated felony.
Abimbola v. Ashcroft, 378 F.3d 173, 177-80 (2d Cir. 2004). Therefore, the
doctrines of res judicata and collateral estoppel prevent Abimbola from
relitigating that claim. See Moch v. East Baton Rouge Parish Sch. Bd., 548 F.2d
594, 596 (5th Cir. 1977).
With regard to his eligibility for former INA § 212(c) relief, Abimbola has
failed to carry his burden of establishing that his aggravated felony conviction
was obtained by a plea agreement reached prior to April 1, 1997. 8 C.F.R.
§ 1003.44(a), (c). The June 20, 2005, correspondence from Connecticut’s Senior
Assistant Public Defender, which Abimbola contends establishes that his failure
to appear did not invalidate his initial plea, was adduced as evidence only for
purposes of his third motion for reconsideration, which the BIA denied as
numerically barred and from which he did not file a timely petition for review.
Consequently, we lack jurisdiction to review the issue whether Abimbola’s new
evidence renders the BIA’s merits determination erroneous. See Navarro-
Miranda, 330 F.3d at 676-77.
Abimbola additionally argues that the BIA erred in upholding the
immigration judge’s credibility finding with respect to Abimbola’s applications
for withholding of removal and relief under the Convention Against Torture
(CAT) and that the BIA erred in denying the remainder of Abimbola’s motion
to reopen as untimely and numerically barred. In conformity with 8 C.F.R.
§ 1003.44(g)(4), the BIA rejected on the merits Abimbola’s argument that he was
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No. 06-60872
eligible for an INA § 212(c) waiver and did not hold the motion to reopen
untimely or numerically barred for purposes of that claim. In conformity with
8 C.F.R. § 1003.2(c)(2), the BIA’s determination that the motion to reopen was
untimely and numerically barred precluded it from reaching the arguments that
were unrelated to INA § 212(c) eligibility, i.e., that he was entitled to
withholding of removal and relief under the CAT based on erroneous credibility
determinations and the actions of counsel.
To the extent Abimbola asks this court to review his entitlement to
withholding of removal and relief under the CAT, contending that the
immigration judge’s factual and credibility finding were erroneous, such an
argument fails to raise either a constitutional issue or a question of law, and,
therefore, we lack jurisdiction to review it. See 8 U.S.C. § 1252(a)(2)(C), (D).
PETITION DISMISSED IN PART AND DENIED IN PART; MOTION
FOR RECONSIDERATION DENIED.
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