                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-12-2006

Olasunkanmi v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3992




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                                                   NOT PRECEDENTIAL

               UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT


                             No. 05-3992



                     ALABI M. OLASUNKANMI,

                                   Petitioner

                                  v.

                     ATTORNEY GENERAL OF
                      THE UNITED STATES,

                               Respondent
              ____________________________________

                    ON PETITION FOR REVIEW
                 OF AN ORDER OF THE BOARD OF
                     IMMIGRATION APPEALS
                      (Agency No. A77-659-412)
                  Immigration Judge: Annie S. Garcy
             _______________________________________


               Submitted Under Third Circuit LAR 34.1(a)
                             May 9, 2006

      BEFORE: McKEE, FUENTES and NYGAARD, CIRCUIT JUDGES

                         (Filed: May 12, 2006)
                      _______________________

                             OPINION
                      _______________________

PER CURIAM
       Alabi Olasunkanmi petitions for review of the orders of the Board of Immigration

Appeals (BIA) denying his application for asylum and his motion to reopen his removal

proceedings. For the following reasons, we will deny his petition.

       In July 2000, Olasunkanmi applied for admission to the United States. He claimed

to be a citizen and presented a birth certificate and driver’s license from New York State.

He subsequently admitted that he was actually a citizen of Nigeria. On August 4, 2000,

Olasunkanmi was charged as inadmissible for willfully misrepresenting his identity when

he applied for admission and for not having valid entry documents. Olasunkanmi

conceded the second charge but contested the fraud charge. He also applied for asylum,

withholding of removal, and relief under the Convention Against Torture. The

Immigration Judge (IJ) sustained both charges, found Olasunkanmi not credible, denied

relief, and ordered Olasunkanmi removed to Nigeria. In January 2003, the BIA affirmed

without an opinion.

       In May 2004, Olasunkanmi filed a counseled motion to reopen. On August 6,

2004, the BIA found that Olasunkanmi had not established changed circumstances in

Nigeria and his motion was untimely. On August 30, 2004, Olasunkanmi filed a second

counseled motion to reopen. The BIA denied the motion because it exceeded the

numerical limitations on motions to reopen.

       On December 20, 2004, Olasunkanmi filed a petition pursuant to 28 U.S.C. § 2241

in the District Court which was converted to a petition for review and transferred to this

Court pursuant to the REAL ID Act. We have jurisdiction under 8 U.S.C. § 1252. Jordon

                                              2
v. Attorney General, 424 F.3d 320, 327 (3d Cir. 2005).

       In his brief, Olasunkanmi only challenges the denial of his asylum claim. The

details of his asylum claim are well-known to the parties, set forth in the IJ’s opinion, and

need not be discussed at length. Briefly, Olasunkanmi testified that as an employee of the

Nigerian government, he had been forced to join a political party, and as a result, he was

abducted by a vigilante group. He stated that he only escaped death because one of his

captors let him go. On appeal, Olasunkanmi argues that his request for asylum should

have been granted and that the IJ denied him due process by deviating from the applicable

law.

       The IJ denied Olasunkanmi’s claim because she found his testimony not credible.

Such a determination is a factual finding subject to review under the substantial evidence

standard. The adverse credibility finding must be upheld unless any reasonable

adjudicator would be compelled to conclude to the contrary. Fiadjoe v. Attorney General,

411 F.3d 135, 153 (3d Cir. 2005). The credibility finding must be grounded in the record

and based on inconsistencies or improbabilities which are crucial to the claim. Zheng v.

Gonzales, 417 F.3d 379, 381 (3d Cir. 2005).

       Olasunkanmi argues that the IJ erroneously stated that he lacked credibility

because of the lack of documentation supporting his claims. He argues that he could not

present testimony of his mother and children to support the events of his abduction.

However, he offered no explanation as to why he was unable to contact his mother for an

affidavit. Olasunkanmi argues that the IJ focused on the lack of testimony from the

                                              3
kidnappers and a bus driver who helped him and that such testimony would be impossible

to obtain. However, the IJ did not state that she expected such evidence; rather, in

judging Olasunkanmi’s credibility, she noted that he could not even remember the names

of the bus driver and his father, who sheltered him for several months. In contrast, the IJ

noted that Olasunkanmi had memorized the phone number of a friend in the United

States, with whose daughter he fathered a child shortly after being released from custody.

The IJ further noted that Olasunkanmi was able to get documents from Nigeria in order

for his new wife to file her Petition for Alien Relative on his behalf but could not get

documents regarding his government employment or his father’s death. The IJ’s adverse

credibility finding was based on specific reasons supported by the record, and

Olasunkanmi has not shown that the record compels a finding that he was credible or

entitled to relief.

       With respect to the denial of the motion to reopen, we review the Board’s denial

for an abuse of discretion with “broad deference” to its decision. Ezeagwuna v. Ashcroft,

325 F.3d 396, 409 (3d Cir. 2003). Under this standard, we will reverse the BIA’s

decision only if it is “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290

F.3d 166, 174 (3d Cir. 2002). A party may file only one motion to reopen which must be

filed no more than ninety days after the final administrative decision was rendered. See 8

C.F.R § 1003.2(c)(2).1


   1
    There are exceptions to this deadline which are not applicable here. See 8 C.F.R. §
1003.2(c)(3).
                                              4
       In May 2004, Olasunkanmi filed a motion to reconsider. Because he alleged that

the conditions in Nigeria had changed, the BIA construed the motion as a motion to

reopen. The BIA determined that Olasunkanmi had not established changed

circumstances in Nigeria and denied the motion. On August 30, 2004, Olasunkanmi filed

another motion to reopen seeking to adjust his status based on his marriage to a citizen.

The BIA denied the motion as barred by the numerical limitations. In order for a motion

to reopen to adjust status based on marriage to be granted, the motion must, inter alia, be

timely and not barred by the numerical limitations. Bhiski v. Ashcroft, 373 F.3d 363, 371

(3d Cir. 2004). Here the motion to reopen was untimely and barred by the numerical

limitations. The BIA did not abuse its discretion in denying the motion to reopen.

       Olasunkanmi alleges that he was denied due process when the BIA denied his

motion to reopen because it deprived him of the opportunity to present evidence of his

marriage, children, persecution and conditions in Nigeria. Due process requires that an

alien facing removal be given notice of the charges against him, a hearing, and a fair

opportunity to be heard. United States v. Torres, 383 F.3d 92, 104 (3d Cir. 2004). Here,

Olasunkanmi was given all of these protections. His claim that he was not given the

opportunity to present his case to a judge is completely contradicted by the record. That

he was not given another opportunity to reopen his case three years after his hearing was

not a violation of due process. Motions to reopen immigration proceedings are generally

disfavored due to the need for finality in litigation. Sevoian, 290 F.3d at 171-72.

       For the above reasons, we will deny the petition for review.

                                             5
