     Case: 14-60869      Document: 00513517230         Page: 1    Date Filed: 05/23/2016




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

                                    No. 14-60869                          FILED
                                  Summary Calendar                    May 23, 2016
                                                                     Lyle W. Cayce
                                                                          Clerk
MICHAEL EMORDI OGWUDE,

                                                 Petitioner

v.

LORETTA LYNCH, U.S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A078 141 077


Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM: *
       Michael Emordi Ogwude, a native and citizen of Nigeria, has filed a
petition for review of the Board of Immigration Appeals’ (BIA) order affirming
the denial of his second motion to reopen his removal proceedings. The BIA
denied the motion because it was time and number barred by 8 U.S.C.
§ 1229a(c)(7)(A)(i) and (c)(7)(C)(i).




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-60869   Document: 00513517230     Page: 2   Date Filed: 05/23/2016


                                 No. 14-60869

       Ogwude contends that the BIA should have equitably tolled the 90-day
time limitation set forth in § 1229a(c)(7)(C)(i), from the BIA’s dismissal of his
appeal in October 2005 until he filed his second motion to reopen in July 2014,
because he was diligent in pursuing his ineffective assistance claims.
       Motions to reopen removal proceedings are disfavored, and the moving
party must satisfy a heavy burden. Altamirano-Lopez v. Gonzales, 435 F.3d
547, 549 (5th Cir. 2006) (per curiam). In reviewing the BIA’s denial of a motion
to reopen, we generally apply a highly deferential abuse-of-discretion
standard. Id.
       It is undisputed that the motion to reopen at issue was Ogwude’s second
such motion and that it was filed more than nine years after the BIA dismissed
his appeal. Thus, the BIA did not abuse its discretion in denying Ogwude’s
second motion to reopen as time and number barred under § 1229a(c)(7)(A),
(c)(7)(C)(i).
       To the extent the BIA determined that Ogwude was not entitled to
equitable tolling of the time and number limitations, assuming equitable
tolling is indeed available in the immigration context, the BIA’s determination
in this regard was also not an abuse of discretion. In other contexts, we have
recognized that equitable tolling should apply in “rare and exceptional
circumstances,” United States v. English, 400 F.3d 273, 275 (5th Cir. 2005),
and a party seeking to toll a filing deadline must demonstrate diligence,
Holland v. Florida, 560 U.S. 631, 649 (2010). Ogwude has failed to establish
that he diligently pursued and presented his ineffective assistance claims.
       The petition for review is DENIED.




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