     Case: 17-60658      Document: 00514912321         Page: 1    Date Filed: 04/11/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 17-60658                  United States Court of Appeals
                                                                             Fifth Circuit

                                                                           FILED
                                                                       April 11, 2019
JULIANA ADENIKE OGUNFUYE,
                                                                      Lyle W. Cayce
              Petitioner                                                   Clerk


v.

WILLIAM P. BARR, U. S. ATTORNEY GENERAL,

              Respondent




                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A036-939-629


Before STEWART, Chief Judge, SOUTHWICK and ENGELHARDT, Circuit
Judges.


PER CURIAM:*
       Juliana Adenike Ogunfuye petitions for review of the Board of
Immigration Appeals’ denial of her motion to reopen. We conclude that we lack
jurisdiction to consider the issues raised and DISMISS her petition.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 17-60658
              FACTUAL AND PROCEDURAL BACKGROUND

      The petitioner, Juliana Adenike Ogunfuye, is a Nigerian citizen who was
admitted to the United States in 1980. In 1990, she was convicted in Texas
state court for theft and forgery. In 2007, an immigration judge entered an
order of removal and dismissed Ogunfuye’s applications for relief as abandoned
after she failed to submit biometric information. Ogunfuye v. Holder, 610 F.3d
303, 304-05 (5th Cir. 2010). The Board of Immigration Appeals (“BIA”) upheld
that order in 2009, we denied her petition for review of the BIA order in 2010,
and Ogunfuye was deported to Nigeria shortly thereafter. Id.
      In December 2016, Ogunfuye moved to reopen her removal proceedings
at the BIA based on the alleged ineffectiveness of her prior counsel. See Matter
of Lozada, 19 I. & N. Dec. 637, 638 (BIA 1988) (recognizing ineffective
assistance claims). The motion alleged that she had been eligible for relief
from removal based on the BIA’s decision in Matter of Abdelghany, 26 I. & N.
Dec. 254 (BIA 2014), but that her counsel’s mistaken belief to the contrary and
her counsel’s failure to make a timely submission of biometric information
prevented Ogunfuye from applying for that relief.
      The BIA denied the motion as untimely. Ogunfuye petitioned this court
for review of that denial.



                                DISCUSSION

      Since Ogunfuye’s motion to reopen was filed nearly eight years after the
BIA entered a final order of removal, a threshold question is whether she is
entitled to equitable tolling of the 90-day statute of limitations. 8 U.S.C.
§ 1229a(c)(7)(C)(i); Lugo-Resendez v. Lynch, 831 F.3d 337, 343-44 (5th Cir.
2016). She must establish both that she pursued her rights with “reasonable


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                                       No. 17-60658
diligence” and that an “extraordinary circumstance” beyond her control
prevented compliance. Lugo-Resendez, 831 F.3d at 344.
       In denying her motion as untimely, the BIA concluded that equitable
tolling was not warranted because she had “not established that she [had] been
pursuing her rights diligently . . . and that some circumstance beyond her
control prevented her from filing . . . within the statutory time limit.”
       Ogunfuye disputes these findings, but they are factual findings to which
“the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(C) applies” if her Texas theft
conviction qualifies as an aggravated felony. 1 Penalva v. Sessions, 884 F.3d
521, 526 (5th Cir. 2018). If the bar applies, then we lack jurisdiction to consider
Ogunfuye’s challenge to the BIA’s finding that she was not entitled to equitable
tolling. Id.
       To determine whether Ogunfuye’s theft conviction constitutes an
aggravated felony, we look no further than our prior 2010 decision concerning
Ogunfuye’s final order of removal.              Ogunfuye, 610 F.3d at 307.             There,
Ogunfuye argued, among other things, that the immigration judge abused its
discretion by denying a continuance. Id. The government, in turn, argued that
the jurisdictional bar in Section 1252(a)(2)(C) precluded review because
Ogunfuye was an aggravated felon. In her reply, Ogunfuye did not dispute
that she was an aggravated felon but instead argued that the issue presented
a question of law not subject to the jurisdictional bar. We ultimately held that
“[a]s an aggravated felon, Ogunfuye is subject to § 1252(a)(2)(C)” and therefore
this “court ha[d] no jurisdiction to reach her” arguments because they did “not
present a constitutional claim or issue of law.” Id.




       1 Relevant here, aggravated felonies are defined to include “a theft offense (including
receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least
one year.” 8 U.S.C. § 1101(a)(43)(G); 8 U.S.C. § 1227(a)(2)(A)(iii).
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                                      No. 17-60658
        We accept this prior holding as the law of the case. Our law of the case
doctrine “generally precludes reexamination of issues of law or fact decided on
appeal.” USPPS, Ltd. v. Avery Dennison Corp., 647 F.3d 274, 282 (5th Cir.
2011) (internal quotation marks and citation omitted). We see no compelling
reason not to apply the prior panel’s determination here. 2 Since this settles
that     Ogunfuye’s     conviction    raises       the   jurisdictional   bar   of   Section
1252(a)(2)(C), we do not address her arguments to the contrary.
        Ogunfuye also contends that that the BIA applied the incorrect rule for
equitable tolling by ignoring our decision in Gonzalez-Cantu v. Sessions, 866
F.3d 302 (5th Cir. 2017). Whether the BIA applied the correct standard is a
question of law not subject to the Section 1252(a)(2)(C) jurisdictional bar. Cf.
Diaz v. Sessions, 894 F.3d 222, 226 (5th Cir. 2018).
        This issue is, however, still subject to the jurisdictional requirement that
“the alien has exhausted all administrative remedies available to the alien as
of right.” 8 U.S.C. § 1252(d)(1). “This exhaustion requirement applies to all
issues for which . . . (1) the petitioner could have argued the claim before the
BIA, and (2) the BIA has adequate mechanisms to address and remedy such a
claim.” Omari v. Holder, 562 F.3d 314, 318-19 (5th Cir. 2009). When “the
BIA’s decision itself results in a new issue and the BIA has an available and




        2Such a reason might have existed if the prior panel’s decision was clearly erroneous
and would work a manifest injustice. Free v. Abbott Labs., Inc., 164 F.3d 270, 272 (5th Cir.
1999). But we find neither of these factors at play here. First, while Ogunfuye presents a
credible argument that her Texas theft conviction may not constitute an aggravated felony,
the panel’s holding is not clearly erroneous given United States v. Rodriguez-Salazar, 768
F.3d 437 (5th Cir. 2014). Second, accepting the panel’s determination will not create a
manifest injustice. We evaluate the BIA’s decision that Ogunfuye does not warrant equitable
tolling using the “highly deferential abuse-of-discretion standard” –– a standard that
Ogunfuye’s merits arguments do not overcome. Lugo-Resendez, 831 F.3d at 340 (internal
quotation marks and citation omitted); see also Penalva v. Sessions, 884 F.3d 521, 526 n.3
(5th Cir. 2018).
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                                 No. 17-60658
adequate means for addressing that issue, a party must first bring it to the
BIA’s attention through a motion for reconsideration.” Id. at 320.
      This reasoning is applicable here.       Ogunfuye challenges the legal
standard the BIA applied in its denial of her motion to reopen. Since she did
not first file a motion for reconsideration before the BIA, however, the issue is
unexhausted and we lack jurisdiction to review it.
      The petition is DISMISSED for lack of jurisdiction.




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