                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 March 31, 2005

                                                         Charles R. Fulbruge III
                           No. 04-20597                          Clerk
                         Summary Calendar


EDWIN OGWUGWUA OGBOLU,
                                    Petitioner-Appellant,

versus

BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT,

                                    Respondent-Appellee.
                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 4:03-CV-5021
                       --------------------

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Edwin Ogwugwua Ogbolu, a native and citizen of Nigeria,

appeals the district court’s dismissal of his 28 U.S.C. § 2241

petition for lack of subject matter jurisdiction.    Ogbolu argues

that the Board of Immigration Appeals (BIA) violated his due

process rights by failing to notify him of its denial of his

appeal of the removal order and as a result his motion to reopen

was filed late and denied as untimely.   The BIA denied his motion

to reopen as untimely; in the alternative, the BIA denied his

motion because Ogbolu had failed to show meaningful changes in

Nigerian conditions since the Immigration Judge’s decision and


     *
       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this opinion should not be published and is not precedent except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.
                            No. 04-20597
                                 -2-

because he failed to show that it was more likely than not that

he would be tortured if he returned to Nigeria.      Because the BIA

indicated that it would have denied the motion even if it had

been timely filed, Ogbolu has not shown that he suffered

substantial prejudice as a result of the BIA’s failure to notify

him of its denial of his appeal.     See Toscano-Gil v. Trominski,

210 F.3d 470, 473 (5th Cir. 2000).

     Ogbolu also challenged the BIA’s factual determination that

he did not show that it was more likely than not that he would be

tortured if he returned to Nigeria.    Ogbolu’s disagreement with

the BIA’s underlying factual determinations does not rise to the

level of a due process violation.     See id. at 474.

     Ogbolu did not allege a cognizable constitutional violation

in his 28 U.S.C. § 2241 petition.    Therefore, the district court

did not err in dismissing his habeas petition for lack of

jurisdiction.    See Toscano-Gil, 210 F.3d at 473.

     For the first time on appeal, Ogbolu argues that: (1) the

BIA violated his equal protection rights by failing to notify him

of its denial of his appeal; and (2) the BIA erred in denying his

motion for a continuance to allow him time to obtain evidence to

support his motion to reopen the removal proceeding.     It is well

established that this court ordinarily does not consider issues

raised by the appellant for the first time on appeal.      Flores-

Garza v. INS, 328 F.3d 797, 804 n.7 (5th Cir. 2003).

     AFFIRMED.
