FATAI OLADEJO, a/k/a Faith Oladejo v. Ins, 514 U.s. 386, 405 1995

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3043
___________
FATAI OLADEJO,
a/k/a Faith Oladejo,
Petitioner
vs.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order
of the Board of Immigration Appeals
Agency No. A70 893 108
Immigration Judge: Alberto J. Riefkohl
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 11, 2009
Before: FUENTES, WEIS and GARTH, Circuit Judges
(Opinion filed: December 18, 2009)
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OPINION
___________
PER CURIAM.
Fatai Oladejo petitions for review of an order of the Board of Immigration
Appeals (BIA), which denied his third motion to reopen his removal proceedings. We

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will deny the petition for review.
Oladejo, a native and citizen of Nigeria, entered the United States in 1989
without permission. About four years later, he filed an asylum claim, based on a fear of
persecution because of his conversion from the Muslim faith to Christianity. On February
21, 2001, an Immigration Judge (IJ) found him removable as charged and denied relief,
but granted voluntary departure. The Board of Immigration Appeals (BIA) dismissed his
appeal on November 28, 2003.
Oladejo filed a motion to reopen in March 2005, claiming neither he nor
counsel had received the BIA’s 2003 decision. On May 10, 2005, the BIA denied the
motion as untimely, discounting the allegation that the decision had not been received.
Oladejo, proceeding pro se, filed a second motion to reopen in February 2007, alleging
that the time period for filing a motion to reopen should be equitably tolled because of the
ineffectiveness of counsel. The BIA denied the second motion on June 25, 2007, noting
that equitable tolling was unavailable because Oladejo had failed to exercise due
diligence, since he had done nothing for about two years after learning that his first
motion to reopen had been denied. Oladejo filed a motion for reconsideration of that
decision, which the BIA denied on November 29, 2007. Proceeding with new counsel,
Oladejo then filed a third motion to reopen on February 1, 2008. The BIA denied the
third motion to reopen on March 11, 2008, noting that Oladejo had given more specific
facts regarding the ineffectiveness of prior counsel, but that he had failed to attribute his

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The BIA denied a motion for reconsideration of the March decision on May 2, 2008.1
That order is not at issue here.
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delay to that ineffectiveness.1
On March 21, 2008, Oladejo filed a petition for review and motion for stay
of removal in the United States Court of Appeals for the Fifth Circuit. That Court
transferred the case to the United States Court of Appeals for the Second Circuit, which
eventually transferred the case here.
This court’s review extends only to the BIA’s order denying Oladejo’s third
motion to reopen. See Stone v. INS, 514 U.S. 386, 405 (1995); Nocon v. INS, 789 F.2d
1028, 1033-34 (3d Cir. 1986). The decision to deny a motion to reopen is within the
Board’s discretion. See 8 C.F.R. § 1003.2(a); Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir.
2001). Oladejo has not shown that the BIA abused its discretion in failing to reopen
proceedings. Oladejo does not dispute that the motion was not filed within 90 days of the
BIA’s first decision, as required by regulation. 8 C.F.R. § 1003.2(c)(2). He argues,
however, that the time to file a motion to reopen should be equitably tolled due to
attorney ineffectiveness. Although attorney ineffectiveness might be grounds for
equitable tolling of the time limitation, Oladejo has not stated how attorney
ineffectiveness affected his ability to timely file a motion to reopen, nor has he shown he
was diligent in filing his motion. Cf. Mahmood v. Gonzales, 427 F.3d 248, 252 (3d Cir.
2005) (attorney ineffectiveness can provide basis for equitable tolling of time to reopen in

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absentia removal order if due diligence is shown).
We will therefore deny the petition for review.
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