Henry Osemwenkhae v. Merrick Garland ( 2022 )

USCA4 Appeal: 21-1970 Doc: 27 Filed: 08/22/2022 Pg: 1 of 3
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-1970
HENRY OSAGI OSEMWENKHAE,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Submitted: August 18, 2022 Decided: August 22, 2022
Before WYNN, THACKER, and HEYTENS, Circuit Judges.
Petition denied in part and dismissed in part by unpublished per curiam opinion.
ON BRIEF: Danielle Beach-Oswald, BEACH-OSWALD IMMIGRATION LAW
ASSOCIATES, PC, Washington, D.C., for Petitioner. Brian Boynton, Principal Deputy
Assistant Attorney General, Erica B. Miles, Acting Assistant Director, Bernard A. Joseph,
Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
USCA4 Appeal: 21-1970 Doc: 27 Filed: 08/22/2022 Pg: 2 of 3
PER CURIAM:
Henry Osagi Osemwenkhae, a native and citizen of Nigeria, petitions for review of
an order of the Board of Immigration Appeals denying Osemwenkhae’s 2018 motion to
reopen his removal proceedings, which were closed in 2008. We have reviewed the
Board’s order, in conjunction with the administrative record, and conclude that the Board
did not abuse its discretion in ruling that the motion was time-barred, see 8 C.F.R.
§ 1003.2(c)(2) (2022), and that Osemwenkhae failed to substantially comply with the
requirements of In re Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988), so to excuse the
untimeliness of his motion, see Barry v. Gonzales, 445 F.3d 741, 745-47 (4th Cir. 2006)
(providing standard of review, discussing Lozada requirements, and explaining that this
court will “only review the merits of the [Board’s] denial of a motion to reopen on the basis
of ineffective assistance of counsel where the [noncitizen] has complied with” those
requirements). We therefore deny the petition for review in part for the reasons stated by
the Board. See In re Osemwenkhae (B.I.A. Aug. 6, 2021).
Osemwenkhae also challenges the Board’s refusal to exercise its authority to reopen
his proceedings sua sponte. We lack jurisdiction to review how the Board exercises its sua
sponte discretion. See Lawrence v. Lynch, 826 F.3d 198, 206-07 (4th Cir. 2016); Mosere
v. Mukasey, 552 F.3d 397, 400-01 (4th Cir. 2009). We therefore dismiss the petition for
review in part. We dispense with oral argument because the facts and legal contentions are
2
USCA4 Appeal: 21-1970 Doc: 27 Filed: 08/22/2022 Pg: 3 of 3
adequately presented in the materials before this court and argument would not aid the
decisional process.
PETITION DENIED IN PART
AND DISMISSED IN PART
3