Ayo Omoaregba Oyakhire v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 23, 2018
• Docket: 16-16266
• Status: Unpublished

Opinion

Case: 16-16266 Date Filed: 03/23/2018 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 16-16266 Non-Argument Calendar ________________________

Agency No. A087-458-478

AYO OMOAREGBA OYAKHIRE,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(March 23, 2018)

Before JORDAN, JULIE CARNES, and HULL, Circuit Judges.

PER CURIAM:

Ayo Omoaregba Oyakhire, proceeding pro se, petitions this Court for review

of the decision of the Board of Immigration Appeals rejecting his appeal from an

Immigration Judge’s decision denying a motion to reopen and reconsider his Case: 16-16266 Date Filed: 03/23/2018 Page: 2 of 6

removal proceedings. We dismiss Mr. Oyakhire’s petition in part and deny it in

part.

I

Mr. Oyakhire is a native and citizen of the Federal Republic of Nigeria. He

entered the United States in November of 1997 on an H1-B visa with temporary

authorization to remain in the country, but overstayed his visa. On January 31,

2008, he was convicted of two counts of family violence battery, Ga. Code Ann. §

16-5-23.1(f), three counts of simple battery, Ga. Code Ann. § 16-5-23, and one

count of disorderly conduct, Ga. Code Ann. § 16-11-39(a)(1).

On January 29, 2009, the Department of Homeland Security (“DHS”)

commenced removal proceedings by serving Mr. Oyakhire with a Notice to

Appear (“NTA”). Later that year, the DHS terminated those proceedings sua

sponte.

In 2012, the DHS issued another NTA charging Mr. Oyakhire with

removability on the grounds that he had remained in the United States for a time

longer than permitted, 8 U.S.C. § 1227(a)(1)(B), that he was an alien who had been

convicted of a crime of domestic violence after admission to the country,

§ 1227(a)(2)(E)(i), and that he was an alien who had been convicted of two crimes

involving moral turpitude not arising out of a single scheme, § 1227(a)(2)(A)(ii).

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At a hearing on June 19, 2012, Mr. Oyakhire asked the Immigration Judge

(“IJ”) for cancellation of removal. He admitted that he had overstayed his visa and

had been convicted of a domestic violence crime, but argued that, for certain

reasons, removal was not warranted. The IJ denied Mr. Oyakhire’s application for

cancellation of removal.

On July 5, 2012, Mr. Oyakhire filed a “Motion and Brief to Reopen and

Reconsider.” The Immigration Court rejected the motion for failure to include

proof of payment of the filing fee. On September 18, 2012, the Immigration Court

accepted Mr. Oyakhire’s resubmission of the motion, presumably with the

requisite fee paid. The IJ denied the motion, stating that Mr. Oyakhire failed to

identify factual or legal errors in the prior decision that would warrant

reconsideration.

After several years, in February of 2016, Mr. Oyakhire—proceeding pro

se—submitted a new filing, again styled as a motion to reconsider or reopen. The

IJ summarily denied the motion as “both number barred and time barred,” and also

addressed the merits of the motion, stating that it raised no errors of fact or law.

Mr. Oyakhire then appealed this decision to the Board of Immigration

Appeals (“BIA”), and also requested that the BIA reconsider or reopen the

proceedings under its discretionary authority. The BIA affirmed the IJ’s decision

on number-bar grounds. It acknowledged some new issues raised in Mr.

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Oyakhire’s motion before the IJ, but only considered them (and rejected them)

under its so-called “sua sponte” authority. It also rejected Mr. Oyakhire’s

contentions regarding ineffective assistance of counsel for, among other things,

failure to establish prejudice.

Mr. Oyakhire now petitions for review of the BIA’s decision.

II

We must reject Mr. Oyakhire’s petition because he has failed to challenge

certain threshold conclusions of the IJ and BIA.

A

Mr. Oyakhire has filed more than one motion that he has described as a

motion to reconsider or reopen. The IJ’s decision concluded that the 2016 filing

was number-barred and time-barred. Arguably, Mr. Oyakhire has presented

reasons both to the BIA and to us why his motion is not time-barred. He has not,

however, challenged the conclusion that his motion is number-barred either before

us or before the BIA. Accordingly, he has not preserved this argument, and we

conclude that we lack jurisdiction to hear his petition as to his motion to reopen or

reconsider his removal proceedings. See Jeune v. U.S. Atty. Gen., 810 F.3d 792,

800 (11th Cir. 2016).

Although aliens may move for reconsideration or reopening of IJ decisions,

8 U.S.C. § 1229a(c)(6), (7), the BIA may also discretionarily reconsider or reopen

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proceedings, 8 C.F.R. § 1003.2(a). We generally lack jurisdiction to review the

latter exercise of discretion—unless the failure to exercise it in turn raises, for

instance, a constitutional claim. See, e.g., See Lin v. U.S. Att’y Gen., 881 F.3d 860,

871 (11th Cir. 2018). The BIA declined to exercise its discretionary (or so-called

“sua sponte”) authority to reconsider the IJ’s decision or to grant relief to Mr.

Oyakhire on any other basis. We will not review this discretionary decision

because it lies outside of our jurisdiction to do so. See id.

B

Mr. Oyakhire also claims that the ineffectiveness of his counsel infringed on

his right to due process with regard to his 2012 motion for reconsideration. The

BIA held that, among other problems with this claim, Mr. Oyakhire failed to

demonstrate the required prejudice. We agree.

Petitioners claiming ineffective assistance of counsel must address (among

other things) prejudice. See Dakane v. U.S. Att’y Gen. 399 F.3d 1269, 1274 (11th

Cir. 2004). “[P]rejudice exists when the performance of counsel . . . may have

affected the outcome of the proceedings.” Id. Mr. Oyakhire claims that his

attorney was unsatisfactory in many respects—for example, that she was

unavailable to him—and he submitted evidence of an arbitration award recovering

some of his attorney’s fees against her, but he does not point to anything that the

attorney did or failed to do that may have affected the outcome of his proceedings.

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Accordingly, the BIA did not err in rejecting Mr. Oyakhire’s claim for relief on the

basis of ineffective assistance of counsel.

C

Mr. Oyakhire seems also to challenge the legality of his continued detention

pending his removal from the United States. To the extent he wishes to raise such

a challenge, he must do so before a United States District Court under 28 U.S.C. §

2241 rather than in these IJ/BIA proceedings before us. See, e.g., Ferry v.

Gonzales, 457 F.3d 1117, 1131 (10th Cir. 2006).

III

We dismiss Mr. Oyakhire’s petition in part and deny it in part.

DISMISSED IN PART and DENIED IN PART.