     Case: 10-60818     Document: 00511595947         Page: 1     Date Filed: 09/08/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        September 8, 2011
                                     No. 10-60818
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

DICKSON NDUBUISI MENIRU,

                                                  Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                                  Respondent


                       Petitions for Review of an Order of the
                           Board of Immigration Appeals
                               BIA No. A029 402 198


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Dickson Ndubuisi Meniru, a native and citizen of Nigeria, petitions this
court for review of the decision of the Board of Immigration Appeals (BIA)
dismissing his appeal from the Immigration Judge’s (IJ) denial of his motion to
reopen. The BIA found that Meniru waived his challenge to his order of
deportation based on lack of notice by not raising the issue in his motion to
reopen before the IJ. Additionally, the BIA, citing 8 C.F.R. § 1003.2(a), declined
to exercise its general authority to reopen proceedings sua sponte, finding that

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-60818    Document: 00511595947     Page: 2   Date Filed: 09/08/2011

                                  No. 10-60818

Meniru had not exercised due diligence in ascertaining the status of his
deportation proceedings.
      This court reviews the denial of a motion to reopen “under a highly
deferential abuse-of-discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 303
(5th Cir. 2005).    The BIA’s decision must be upheld as long as it is not
“capricious, racially invidious, utterly without foundation in the evidence, or
otherwise so irrational that it is arbitrary rather than the result of any
perceptible rational approach.” Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir.
2006) (internal quotation marks and citation omitted).
      Meniru argues that he did not raise his “lack of notice” argument in his
motion to reopen before the IJ because, at the time that he filed his motion, he
was suffering from memory problems which caused him to erroneously state that
he failed to attend the February 1993 immigration hearing because of a family
emergency. Meniru contends that, upon reflection and gaining memory, it
became clear that he never received notice of the February 1993 hearing.
      The BIA generally will not consider evidence and arguments that could
have been but were not presented to the IJ. Enriquez-Gutierrez v. Holder, 612
F.3d 400, 409-10 & n.9 (5th Cir. 2010). Because Meniru indicated in his motion
to reopen that, while he received oral notice of the immigration hearing, he was
unable to appear due to a family emergency, the BIA did not err in concluding
that Meniru waived his opportunity to raise the factual claim that he was
erroneously ordered deported in absentia due to lack of notice of the immigration
hearing. See Singh, 436 F.3d at 487. Accordingly, Meniru’s petition for review
is denied as to this ground.
      Because the authority to reopen an immigration proceeding sua sponte is
entirely discretionary, we lack jurisdiction to review a challenge to the BIA’s
refusal to do so. See Lopez-Dubon v. Holder, 609 F.3d 642, 647 (5th Cir. 2010),
cert. denied, 131 S. Ct. 2150 (2011); Enriquez-Alvarado v. Ashcroft, 371 F.3d 246,
249-50 (5th Cir. 2004). Meniru’s petition for review is DENIED in part and

                                        2
  Case: 10-60818   Document: 00511595947   Page: 3   Date Filed: 09/08/2011

                              No. 10-60818

DISMISSED in part for lack of jurisdiction. His motion for appointment of
counsel is DENIED.




                                    3
