Osinachi Ezike v. Eric Holder, Jr.

Case: 09-60399 Document: 00511151513 Page: 1 Date Filed: 06/23/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 23, 2010
No. 09-60399 Lyle W. Cayce
Clerk
OSINACHI OGEMDI EZIKE,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order
of the Board of Immigration Appeals
BIA No. A088 936 394
Before JOLLY, SMITH, and OWEN, Circuit Judges.
PER CURIAM:*
I
Petitioner Osinachi Ogemdi Ezike petitions for review of two final orders
of the Board of Immigration Appeals (BIA). Ezike, a citizen of Nigeria, entered
the United States in 2001 on a student visa to study at a university in Arkansas.
In June 2008 a notice to appear charged that Ezike was removable because he
(1) had failed to attend the university from June 2006 to June 2008 in violation
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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of his conditions of admission to the United States and (2) had been convicted by
an Arkansas state court of the offense of Internet stalking of a child.
At a merits hearing held in August 2008, Ezike conceded that he last
attended his Arkansas university in June 2006 and acknowledged his Arkansas
plea of nolo contendere. The immigration judge (IJ) determined that the charges
against Ezike were correct and that he was subject to removal, and designated
Nigeria as the country of removal. The hearing was adjourned so that Ezike
might file for relief.
In September 2008, Ezike filed an application for asylum, for withholding
of removal, and for relief under the Convention Against Torture (CAT). At the
merits hearing in February 2009, Ezike presented evidence concerning his fear
of the Movement for the Actualization of the Sovereign State of Biafra
(MASSOB), a political group that he accused of having threatened him before he
left Nigeria. The IJ found that Ezike had not presented the proof of torture
needed to qualify for deferral of removal under CAT. The IJ also concluded that
Ezike was not eligible for asylum because his asylum application was untimely,
having been filed more than a year after Ezike’s arrival in the United States.
The IJ granted the Government’s motion to pretermit Ezike’s application for
withholding of removal under §241(b)(3) of the Immigration and Naturalization
Act (INA) and under CAT because Ezike’s conviction of Internet stalking was a
particularly serious crime that rendered Ezike ineligible for either type of relief.
Ezike timely appealed to the BIA. The BIA concurred with the IJ’s
determination that Ezike’s asylum application had been untimely and that Ezike
had not demonstrated that extraordinary circumstances or other factors excused
his delay; that Ezike’s Internet stalking conviction was for a particularly serious
crime and that he was consequently not entitled to withholding of removal; and
that Ezike had not shown “that he more likely than not would be tortured by, or
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with the acquiescence of, an official of the Government of Nigeria.” The BIA
therefore dismissed the appeal on April 20, 2009.
On May 18, 2009, Ezike moved this court for a stay of removal pending a
ruling on the motion to reconsider or to reopen that he was filing with the BIA
that same day. The clerk of this court filed Ezike’s motion on May, 22, 2009, and
treated it as a petition for review. The Government, too, treated the petition as
one for review of the April order of dismissal, but contended that the petition
was not timely filed according to the “prison mailbox rule.” A panel of this court
concluded that the motion had been properly filed on May 18. Ezike v. Holder,
No. 09-60399 (5th Cir. July 13, 2009). Deeming Ezike’s motion as one “for a stay
of deportation following the entry of a final order” of the BIA, the panel granted
“a temporary stay of deportation pending the filing of the administrative record
and our review thereof.” Id.
On the same day that he moved this court for a stay, Ezike moved the BIA
to reconsider its ruling or to reopen his proceeding and to stay his removal.
On June 2, 2009, Ezike filed a petition with this court, seeking review of
the April 20, 2009, dismissal of his appeal by the BIA. That filing is variously
referred to on the docket sheet as an “[a]dditional appeal” and a “[p]etition for
review,” and an “additional petition for review.”
On July 27, 2009, the BIA ruled on Ezike’s motions to reconsider and to
reopen. The BIA concluded that it had made “no material errors of fact or law”
in dismissing Ezike’s appeal, but it nevertheless sua sponte reconsidered the
claim for deferral of removal under CAT. The BIA reiterated that Ezike had not
demonstrated that the Government of Nigeria had been “willfully blind” to
MASSOB’s actions. Consequently, the BIA denied the motion to reconsider.
Additionally, it denied the motion to reopen because Ezike’s new evidence
related to postconviction proceedings, which do not affect a conviction’s finality
“unless and until” the conviction has been overturned.
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Ezike then timely sought this court’s review of the BIA’s denial of his
motions to reconsider and to reopen.
II
A
Although the issue was not raised by the parties, we must first address
whether we have jurisdiction to hear Ezike’s petition for review of the BIA’s
April 20 removal order. We review questions of subject matter jurisdiction de
novo, and may consider such questions sua sponte because “subject matter
delineations must be policed by the courts on their own initiative.” Gasch v.
Hartford Acc. & Indem. Co., 491 F.3d 278, 281 (5th Cir. 2007) (quoting Ruhrgas
AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999)).
A petition for review must be filed not later than 30 days after the date of
the final order of removal. 8 U.S.C. § 1252(b)(1). This requirement is
jurisdictional and mandatory. Stone v. INS, 514 U.S. 386, 405 (1995); Navarro-
Miranda v. Ashcroft, 330 F.3d 672, 676 (5th Cir. 2003); see also Bowles v.
Russell, 551 U.S. 205, 213 (2007). A motion before the BIA to reconsider does
not toll the period for filing a petition for review of the order. Stone, 514 U.S. at
405.
Ezike’s June 20, 2009, petition for review was not filed within 30 days of
the April 20 removal order. Therefore, we have jurisdiction to review the BIA’s
original order of removal only if Ezike’s May 18, 2009, motion can be considered
a petition for review.
This court liberally construes filings by pro se litigants. Sossamon v. Lone
Star State of Texas, 560 F.3d 316, 322 n.3 (5th Cir. 2009). Further, notices of
appeal are construed liberally to avoid technical barriers to review. New York
Life Ins. Co. v. Deshotel, 142 F.3d 873, 884 (5th Cir. 1998). On the other hand,
a notice of appeal must evince an intent to appeal. Mosley v. Cozby, 813 F.2d
659, 660 (5th Cir. 1987) (“Because the primary relief sought in Mosley’s . . .
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pleading is reconsideration, and leave to appeal is sought only if reconsideration
is denied, we conclude that the document does not ‘clearly evince his intent to
appeal.’” (internal bracketing omitted)).
Ezike’s May 18 motion requested “that this court issue a stay of
deportation pending judicial review of motion to reopen/reconsider final order of
deportation.” The motion clearly stated that he might file a petition for review
in this court in the future, if his motion for reconsideration before the BIA was
unsuccessful. This statement, and the motion’s multiple references to a possible
future petition for review, clearly evince Ezike’s intent not to petition for review
at that time. We cannot construe his May 18 motion as a timely petition for
review, and consequently we lack jurisdiction to review the BIA’s April 20 order.
B
Next, we turn to Ezike’s petition for review of the BIA’s order denying his
motions to reconsider and to reopen. A denial of a motion to reconsider or to
reopen is reviewed under a “highly deferential abuse of discretion standard.”
Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). A motion for
reconsideration fails if the alien does not “identify a change in the law, a
misapplication of the law, or an aspect of the case that the BIA overlooked.” Id.
at 301. Ezike did not identify any of those things, and instead merely repeated
the same arguments that he had made in his appeal to the BIA.
Ezike’s motion to reopen was based on his contention that there existed
new evidence of the non-finality of his Arkansas conviction for Internet stalking.
This argument has been rendered moot by the decision in Ezike v. State, No. CR
09-302, 2009 WL 1819514 (Ark. S. Ct. June 25, 2009) (dismissing Ezike’s appeal
of the dismissal of his petition to vacate his guilty plea). Ezike’s petition for
review of the BIA’s July 27 order therefore fails.
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III
For the reasons stated above, the petition for review of the original
removal order is DISMISSED as untimely, and the petition for review of the
denial of the motions to reconsider and to reopen is DENIED.
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