Akinyemi Olufemi Bamisaiye v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-14779
Non-Argument Calendar
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Agency No. A074-626-501
AKINYEMI OLUFEMI BAMISAIYE,
a.k.a. Yemi Bamisaiye,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(October 23, 2014)
Before ED CARNES, Chief Judge, TJOFLAT and JORDAN, Circuit Judges.
PER CURIAM:
Akinyemi Bamisaiye, a citizen of Nigeria and former lawful permanent
resident of the United States, petitions this Court for review of the Board of
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Immigration Appeals’ (BIA) denial of his second motion to reopen his removal
proceedings.
I.
Bamisaiye entered the United States as a student in 1986. In 2006 he
became a lawful permanent resident. He pleaded guilty in 2009 to one count each
of mail fraud and money laundering. The district court found that Bamisaiye’s
crimes resulted in a total loss to the victims of about $1.3 million. As a result of
his conviction, the Department of Homeland Security began removal proceedings
against him.
In 2012 an immigration judge (IJ) ordered Bamisaiye’s removal to Nigeria.
During that removal proceeding, Bamisaiye conceded that his conviction made him
removable. See 8 U.S.C. § 1227(a)(2)(iii); 8 U.S.C. § 1101(a)(43)(M)(i). Instead
of challenging his removability head-on, he sought a waiver of removability based
on the “extreme hardship” his removal would cause his wife and children — all of
whom are United States citizens. See 8 U.S.C. § 1182(h) (allowing discretionary
waivers when removal would result in “extreme hardship” to an alien’s qualifying
relatives). The IJ denied Bamisaiye’s application for an extreme hardship waiver
and ordered him removed to Nigeria.
Bamisaiye then filed with the BIA a number of requests for relief from that
order, each of which the BIA rejected. It first dismissed his direct appeal of the
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IJ’s removal order. It then denied his motion to reconsider its dismissal of his
appeal. Finally, the BIA denied Bamisaiye’s motion requesting that it reopen his
removal proceeding and stay his removal.
Meanwhile, Bamisaiye filed his first petition for review with this Court. See
Bamisaiye v. U.S. Att’y Gen., No. 12-15030 (11th Cir. May 29, 2013) (“2013
Order”). That first petition sought review of the BIA’s dismissal of Bamisaiye’s
appeal, not its denial of his later motions. We dismissed that petition.
After we dismissed that petition, Bamisaiye filed a second motion to reopen
his removal proceeding with the BIA. The BIA denied that second motion as both
time- and number-barred.1 Although exceptional circumstances sometimes allow
it to grant time- or number-barred motions to reopen, the BIA concluded that
Bamisaiye was “statutorily ineligible for relief” regardless of those exceptions,
because on direct appeal it had accepted the IJ’s finding that Bamisaiye had
committed a “particularly serious crime.” See 8 U.S.C. § 1231(b)(3)(B)(ii)
(barring relief from removal where “the alien, having been convicted by a final
judgment of a particularly serious crime[,] is a danger to the community”); 8
C.F.R. § 1208.16(d)(2) (clarifying that this denial of relief is mandatory).
1 With a few exceptions that do not apply here, an alien is limited to only one motion to
reopen, which he must file within 90 days of the final decision rendered in his case. See 8 C.F.R.
§ 1003.2(c)(2).
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Bamisaiye could not overcome the time and number bars, and the BIA therefore
denied his motion to reopen.
Bamisaiye now petitions this Court for review of the BIA’s denial of this
second motion to reopen.
II.
The government contends that we lack jurisdiction to review Bamisaiye’s
petition. We review this issue de novo. Arias v. U.S. Att’y Gen., 482 F.3d 1281,
1283 (11th Cir. 2007). When reviewing the BIA’s actions, we have explicit,
statutory jurisdiction to review only “final order[s] of removal,” 8 U.S.C.
§ 1252(a)(1), but “[i]mplicit in this jurisdictional grant is the authority to review
orders denying motions to reopen any such final order.” Patel v. U.S. Att’y Gen.,
334 F.3d 1259, 1261 (11th Cir. 2003).
We are stripped of jurisdiction to review a “final order of removal,”
however, when it is “against an alien who is removable by reason of having
committed a [listed] criminal offense.” 8 U.S.C. § 1252(a)(2)(C). Among those
offenses is an “aggravated felony” that “involves fraud or deceit in which the loss
to the victim or victims exceeds $10,000.” See 8 U.S.C. § 1227(a)(2)(A)(iii); 8
U.S.C. § 1101(a)(43)(M)(i). Because “our jurisdiction to review denials of
motions to reopen derives from our jurisdiction to review final orders of removal,”
Guzmon-Munoz v. U.S. Att’y Gen., 733 F.3d 1311, 1314 (11th Cir. 2013), a
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“jurisdiction-stripping provision [that] would have deprived us of jurisdiction to
entertain an attack on the final order of removal . . . [also] strips us of jurisdiction
to entertain an attack on that order mounted through [the] filing of a motion to
reopen.” Patel, 334 F.3d at 1262. Notwithstanding these limitations, we always
retain jurisdiction for the “review of constitutional claims or questions of law
raised upon a petition for review.” 8 U.S.C. § 1252(a)(2)(D).
The upshot is that our jurisdiction to review the BIA’s denial of this second
motion to reopen extends only so far as it did when we reviewed its dismissal of
Bamisaiye’s appeal. See 2013 Order. Bamisaiye conceded his aggravated felony
conviction and his removability based on it. We therefore applied § 1252(a)(2)(C)
to limit our review of that petition, holding that we had jurisdiction only for the
review provided by § 1252(a)(2)(D) — review limited to constitutional claims or
questions of law. See 2013 Order, slip op. at 3. The same is true here. See Patel,
334 F.3d at 1262 (“[W]here a final order of removal is shielded from judicial
review, so, too, is a refusal to reopen that order.”). Unlike in his first petition,
however, Bamisaiye now presents a claim that is subject to our limited,
§ 1252(a)(2)(D) jurisdiction.
III.
Bamisaiye presents no constitutional claims, but he has raised one question
of law. He contends that the BIA failed to fully consider the evidence, presented in
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his second motion to reopen his removal proceeding, that the circumstances in
Nigeria had changed since the denial of his first motion to reopen. See Perez-
Guerrero v. U.S. Att’y Gen., 717 F.3d 1224, 1231 (11th Cir. 2013) (holding that
“whether the [BIA] failed to give reasoned consideration to [a petitioner’s] claims”
is a question of law) (quotation marks omitted).
Bamisaiye is right that the BIA’s short opinion barely mentions the issue of
changed circumstances. He is wrong that it needed to do more. Bamisaiye’s
second motion to reopen was both time- and number-barred, but he sought relief
from these bars based on an exception for applicants seeking “withholding of
deportation based on changed circumstances.” See 8 C.F.R. § 1003.2(c)(3)(ii)
(emphasis added). Citing its earlier acceptance of the IJ’s finding that Bamisaiye’s
convictions were for “particularly serious crime[s],” the BIA noted in its denial
that such a finding makes him “statutorily ineligible for relief from removal.” See
8 U.S.C. § 1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(d)(2). That was all the BIA
needed to do because ineligibility based on “particularly serious” convictions
forecloses relief under the changed circumstances exception, rendering irrelevant
the question of whether circumstances in Nigeria had in fact changed. The BIA
thus gave Bamisaiye’s claim all the “reasoned consideration” it warranted. Perez-
Guerrero, 717 F.3d at 1231.
PETITION DENIED.
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