ALD-287                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-1114
                                       ___________

                           AKINTOYE OMATSOLA LAOYE,
                                            Petitioner

                                             v.

              ATTORNEY GENERAL UNITED STATES OF AMERICA,
                                                 Respondent

                       ____________________________________

                        On Petition for Review of an Order of the
                             Board of Immigration Appeals
                              (Agency No. A097-436-415)
                     Immigration Judge: Honorable Eugene Pugliese
                       ____________________________________

                   Submitted for Possible Summary Action Pursuant
                     to Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                    July 30, 2015
            Before: CHAGARES, SCIRICA and RENDELL, Circuit Judges

                             (Opinion filed: August 17, 2015)
                                      ___________

                                        OPINION*
                                       ___________

PER CURIAM


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Akintoye Omatsola Laoye, proceeding pro se, petitions for review of a decision by

the Board of Immigration Appeals (“BIA”) denying his motion to reopen. The

Government has moved for summary denial, arguing that no substantial question is

presented on appeal. We will grant the Government’s motion and will summarily deny

the petition for review. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

       Laoye, a native and citizen of Nigeria, entered the United States in 1996 as a J-2

non-immigrant child of an exchange visitor and later adjusted to F-1 non-immigrant

student status. In 2004, he was found removable for having committed an aggravated

felony. The Government later conceded that the charge could not be sustained in light of

Stubbs v. Att’y Gen., 452 F.3d 251 (3d Cir. 2006). However, the Government brought a

new charge that Laoye was removable for failure to maintain full-time student status.

See 8 U.S.C. § 1227(a)(1)(C)(i). Laoye was found removable on that basis in 2008, and

the BIA denied his appeal. We denied his ensuing petition for review. Laoye v. Att’y

Gen., 352 F. App’x 714, 717 (3d Cir. 2009).

       After the BIA denied a motion for reconsideration, we granted Laoye’s petition for

review and remanded the case for the BIA to address certain arguments Laoye had raised

regarding his student status. Laoye v. Att’y Gen., 459 F. App’x 162, 165 (3d Cir. 2012).

On remand, the BIA determined that Laoye had failed to maintain full-time student

status. We denied his subsequent petition for review. Laoye v. Att’y Gen., 572 F. App’x

88, 91 (3d Cir. 2014). Shortly thereafter, in September 2014, Laoye filed a motion to

reopen his immigration proceedings. He argued that reopening was warranted because:




                                           2
(1) his mother or wife could file an I-130 visa petition on his behalf; (2) the Immigration

Judge (“IJ”) erred when he found that Laoye was not eligible for adjustment of status

because he lacked a waiver for the two-year foreign residence requirement; and (3) he

should be allowed to present evidence that he had suffered from depression as a

“defense” for his failure to maintain full-time student status. The BIA denied the motion

on the basis that it was time- and number-barred and failed to qualify for any exception to

those limitations. The Board also concluded that Laoye did not demonstrate an

exceptional situation that warranted sua sponte reopening. The present petition for

review followed.

        We have jurisdiction pursuant to 8 U.S.C. § 1252.1 We review the BIA’s denial of

a motion to reopen for an abuse of discretion. Pllumi, 642 F.3d at 158. Such review is

highly deferential, and the BIA’s decision will not be disturbed unless it is “‘arbitrary,

irrational, or contrary to law.’” Id. (quoting Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir.

2006)). As a general rule, an alien may file only one motion to reopen and must do so

within ninety days of the date of the final administrative decision. 8 U.S.C.




    1
      We lack jurisdiction to review the BIA’s discretionary decision to deny sua sponte
reopening. See Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003). Although
we may consider whether the denial of sua sponte reopening “is based on a false legal
premise,” Pllumi v. Att’y Gen., 642 F.3d 155, 160 (3d Cir. 2011), Laoye has not raised
any legal arguments regarding the sua sponte determination in his case.




                                         3
§ 1229a(c)(7)(A), (C)(i). Laoye did not acknowledge that his motion was time- and

number barred,2 nor did he attempt to qualify for any of the limited exceptions to the

filing deadline. 8 U.S.C. § 1229a(c)(7)(C)(ii)-(iv). Furthermore, his arguments regarding

his eligibility to file an I-130 application and alleged errors in his prior immigration

hearings were irrelevant to the only exception that potentially might have been applicable

– a motion to reopen seeking asylum or withholding of removal based on changed

circumstances in the country of nationality. See 8 U.S.C. § 1229a(c)(7)(C)(ii).

Accordingly, the BIA did not abuse its discretion in denying Laoye’s motion to reopen as

time- and number-barred.

        On appeal, Laoye has failed to persuade us to hold otherwise. He asserts that he is

eligible for asylum or withholding of removal due to the presence of the Boko Haram in

Nigeria and his membership in an unspecified social group. Laoye did not exhaust this

claim by raising it before the BIA, and we therefore lack jurisdiction to review it. See

Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003). Although he mentioned

in his motion to reopen that he was eligible for “asylum due to his being a member of a

social group that will be persecuted,” he did not explain the basis of that claim, provide

any supporting evidence, or include an application for asylum. See 8 C.F.R

§ 1003.2(c)(1). Denial was thus appropriate, given his failure to comply with the

requirements for motions to reopen seeking relief from removal. See Lin v. Att’y Gen.,


    2
    Laoye has filed numerous motions to reopen since his immigration proceedings
commenced in 2004, including at least four after the BIA dismissed his appeal in 2012.




                                       4
700 F.3d 683, 689 (3d Cir. 2012). Laoye’s assertion that the BIA violated his due

process rights by ignoring his “request to file for asylum” is utterly meritless because he

made no such request and, even if he had, he was required to affirmatively apply for the

relief.

          Laoye also asserts that the BIA abused its discretion by ignoring: (1) a supporting

affidavit; and (2) his eligibility for adjustment of status in light of a waiver of the foreign

residence requirement granted to his mother in 1997. There is no apparent basis for the

first assertion because the administrative record does not reflect that Laoye filed an

affidavit with his motion to reopen. As for the second assertion, Laoye’s eligibility for

adjustment of status is not relevant to the question of whether he satisfied an exception to

the filing deadline for his motion to reopen. The BIA did not abuse its discretion by

failing to expressly refute an irrelevant argument. See Zheng v. Att’y Gen., 549 F.3d

260, 268 (3d Cir. 2008) (noting that, so long as the BIA has “given reasoned

consideration,” it need not “expressly parse or refute on the record each individual

argument or piece of evidence offered by the petitioner”) (citation omitted). Finally,

Laoye argues that the statutory bar to a motion to reopen may be ignored when there is a

violation of the movant’s due process rights.3 But none of the cases he cites supports this

position or even involves the filing requirements for motions to reopen.


The BIA has denied all of the latter motions.
   3
     Laoye claims his due process rights were violated when the IJ erroneously
concluded that he was not eligible to adjust status due to the lack of a waiver. The
Government contends that the IJ made no such determination in the 2008 decision.




                                        5
      For these reasons, we grant the Government’s motion and will deny the petition

for review.




However, the IJ did come to that conclusion in the 2005 decision.




                                   6
