Benjamin Nezianya v. Eric Holder, Jr. , 407 F. App'x 846 ( 2011 )

Case: 10-60248 Document: 00511349046 Page: 1 Date Filed: 01/12/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 12, 2011
No. 10-60248
Summary Calendar Lyle W. Cayce
Clerk
BENJAMIN EKENE NEZIANYA, also known as Benjamin Nezianya,
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. A029 400 745
Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Benjamin Nezianya, a native and citizen of Nigeria, petitions for review
of an order from the Board of Immigration Appeals (BIA) denying his motion to
reopen removal proceedings for adjustment of status as untimely, and declining
to exercise its sua sponte authority to reopen. Nezianya contends: he has met
the criteria required for a motion to reopen; and the BIA erred by failing to
consider it.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 10-60248 Document: 00511349046 Page: 2 Date Filed: 01/12/2011
No. 10-60248
The BIA has authority to reopen removal proceedings, subject to a 90-day
filing period, upon a motion filed pursuant to 8 C.F.R. § 1003.2(c). Failure to file
within the 90-day filing period does not preclude reopening such proceedings,
however, as long as one of four exceptions applies. 8 C.F.R. § 1003.2(c)(3). The
BIA’s denial of a motion to reopen is reviewed for abuse of discretion; its factual
findings, for substantial evidence. See, e.g., Panjwani v. Gonzales, 401 F.3d 626,
632 (5th Cir. 2005). Because Nezianya’s motion to reopen was untimely and
failed to meet any of the exceptions set forth in 8 C.F.R. § 1003.2(c)(3), the BIA
did not abuse its discretion in denying that motion as untimely.
Nezianya also maintains the BIA erred by failing to exercise its authority
sua sponte to reopen his removal proceedings. Because 8 C.F.R. § 1003.2(a)
provides the BIA with complete discretion in determining whether to reopen, our
court lacks jurisdiction to review a challenge to the BIA’s refusal to exercise its
authority under § 1003.2(a). E.g., Lopez-Dubon v. Holder, 609 F.3d 642, 647 (5th
Cir. 2010), petition for cert. filed (16 Nov. 2010) (No. 10-658); Ramos-Bonilla v.
Mukasey, 543 F.3d 216, 219-20 (5th Cir. 2008).
Nezianya claims this lack of jurisdiction constitutes a due-process
violation. In his motion to reopen, Nezianya sought the opportunity to apply for
adjustment of status. Contrary to Nezianya’s assertion, “[our] circuit has
repeatedly held that discretionary relief from removal, including an application
for an adjustment of status, is not a liberty or property right that requires due
process protection”. Ahmed v. Gonzales, 447 F.3d 433, 440 (5th Cir. 2006).
DENIED in part; DISMISSED in part.
2