Akinniyi v. Attorney Gen. of the United States
| Decision Date | 23 November 2015 |
| Docket Number | No. 15-1231,No. 15-1868,15-1231,15-1868 |
| Parties | KOYODE NIRAN AKINNIYI, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent |
| Court | U.S. Court of Appeals — Third Circuit |
NOT PRECEDENTIAL
On Petition for Review of a Final Order of the Board of Immigration Appeals
(A093-014-174)
Submitted Under Third Circuit LAR 34.1(a) November 20, 2015
Before: AMBRO, HARDIMAN and NYGAARD, Circuit Judges.
Koyode Akinniyi petitions for review of a decision by the Board of Immigration Appeals (BIA) denying his motion to reopen his removal proceedings. Because Akinniyi's first argument fails as a matter of law and his second claim fails for lack of jurisdiction, we will deny the petition in part and dismiss it in part.
Akinniyi is a native and citizen of Nigeria. He entered the United States without inspection in 1981 and has been a legal permanent resident since 1990. Akinniyi's proceedings date back to 2002, when he was convicted in the U.S. District Court for the Northern District of Illinois of "fraud and other related activities in connection with access devices" (essentially, theft by deception and possession of several stolen credit cards) in violation of 18 U.S.C. § 10(29)(a)(2). His actions caused a loss of $34,000 to Citibank. As an alien convicted of an aggravated felony, Akinniyi was removable under 8 U.S.C. § 1227(a)(2)(A)(iii). See 8 U.S.C. § 1101(a)(43)(M) (). The Government commenced removal proceedings in August 2002 by issuing a Notice to Appear (NTA) in immigration court.
A series of immigration court hearings followed. Akinniyi first appeared in October 2002 without counsel, so the IJ granted him a two-month adjournment to obtain counsel. Akinniyi returned to his next hearing without counsel, but because he expressed a fear of persecution in Nigeria, the IJ granted him a two-week adjournment so he couldcomplete an asylum application. When Akinniyi returned for his third hearing—this time represented by attorney Sandra Greene—he failed to present the court with an asylum application, so Akinniyi's prior request for asylum was deemed abandoned. Although the IJ scheduled a fourth hearing for February 2003, he indicated that he was likely to decide the case before then.
The IJ made good on his word, issuing a written decision several days prior to the fourth hearing. The IJ held that Akinniyi was removable as charged in the NTA and had abandoned his request for asylum by failing to file an application by the court's deadline. This decision was mailed to Greene, who allegedly failed to inform Akinniyi of the decision. Akinniyi did not appeal the decision to the BIA.
More than seven years later, in May 2010, Akinniyi retained a different attorney, Yakov Spektor, who filed a "motion to reopen an in absentia order" on Akinniyi's behalf. App. 360-63. The IJ denied the motion because the removal order was not issued in absentia. Akinniyi did not appeal this decision either.
The petition for review at issue relates to Akinniyi's second motion to reopen, filed four years after the first and more than eleven years after the IJ's order of removal. Akinniyi made two arguments in support of reopening. First, he alleged that Green rendered ineffective assistance of counsel by failing to file an asylum application and by failing to notify him of the IJ's decision, and that Spektor was ineffective by filing the wrong type of motion to reopen. Consequently, Akinniyi claimed he was entitled to sua sponte reopening of his case and equitable tolling of the time limitation on his motion toreopen. Akinniyi also invoked the changed-country-conditions exception to the time limitations on motions to reopen, asserting that reopening was necessary so he could apply for asylum based on the emergence of the terrorist group Boko Haram in Nigeria and his allegedly well-founded fear that he was at risk of persecution at their hands given his status as a Westernized individual with a child born out of wedlock.
The IJ denied Akinniyi's second motion, concluding that he had failed to explain the nature of his agreement and communications with Greene with sufficient detail to show ineffective assistance and that there was no prejudice in Spektor's filing of a deficient motion because the court didn't deny Akinniyi's second motion as number-barred. The IJ also held that Akinniyi had failed to demonstrate due diligence in pursuing his case in the seven years after Greene's alleged ineffective assistance surrounding the removal order and the three years after Spektor's alleged ineffective assistance. As for Akinniyi's changed-country-conditions argument, the IJ determined: (1) that Akinniyi had failed to demonstrate materiality because the evidence suggested that Boko Haram was active mainly in areas far from Akinniyi's home region of Nigeria, and (2) that Akinniyi had not demonstrated prima facie eligibility for asylum because he had shown neither that his alleged social groups were cognizable under immigration law nor that he was likely to be persecuted due to his membership in them.
The BIA affirmed on the same grounds. Akinniyi filed this petition for review.1
Akinniyi first argues that his attorneys' alleged ineffective assistance entitled him to equitable tolling of the time limitation pertaining to motions to reopen.2 We have recognized that "[i]neffective assistance of counsel can serve as a basis for equitable tolling if substantiated and accompanied by a showing of due diligence." Alzaarir v. Att'y Gen., 639 F.3d 86, 90 (3d Cir. 2011). See also Mahmood v. Gonzales, 427 F.3d 248, 252 (3d Cir. 2005) ().
The BIA held that Akinniyi was not entitled to equitable tolling because he had failed to exercise due diligence. We defer to the IJ's factual findings and consider only whether they amount to a lack of due diligence as a matter of law. Kamara v. Att'y Gen., 420 F.3d 202, at 210-11 (3d Cir. 2005); Sukwanputra v. Gonzales, 434 F.3d 627, 631 (3d Cir. 2006) (). The IJ found that Akinniyi exercised a "complete lack of action for eight years after Ms. Greene's representation," failed to "obtain counsel to move to reopen his case and file for asylum or other relief from removal," and neglected to "investigate his immigration status." App. 87. The IJ also found that Akinniyi "was puton notice of his written order of removal and his right to file a motion to reopen in 2010" when his first motion to reopen was denied, but nevertheless had "no excuse" for failing to "follow[] up" for more than three years before finally filing his second motion. App. 87.
The IJ did not err in holding that these...
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