Abolasade Afolabi v. Attorney General United States

Filing

NOT PRECEDENTIAL OPINION Coram: AMBRO, RESTREPO and NYGAARD, Circuit Judges. Total Pages: 3. Judge: RESTREPO Authoring.

Case: 16-4291

Document: 003112625829

Page: 1

Date Filed: 05/18/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-4291
_____________
ABOLASADE CHARLES AJIBOLA AFOLABI,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
_____________
On Petition for Review of an Order
of the Board of Immigration Appeals
(Agency No. A095-467-881)
Immigration Judge: Eugene Pugliese
______________
Submitted under Third Circuit L.A.R. 34.1(a)
May 8, 2017
Before: AMBRO, RESTREPO, and NYGAARD, Circuit Judges.
(Opinion Filed: May 18, 2017)
______________
OPINION*
______________

*

This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.

Case: 16-4291

Document: 003112625829

Page: 2

Date Filed: 05/18/2017

RESTREPO, Circuit Judge.
Abolasade Ajibola Afolabi petitions for review of the Board of Immigration
Appeals (“BIA”) decision denying his motion to reopen removal proceedings sua sponte.
Because Afolabi does not argue that he meets one of the exceptions to the general rule
against review of decisions denying sua sponte reopening, we will dismiss his petition for
lack of appellate jurisdiction.
I
Afolabi is a native and citizen of Nigeria who entered the United States on a
student visa in 1998. After he overstayed his visa, the Department of Homeland Security
and Immigrations and Customs Enforcement initiated removal proceedings in New Jersey
Immigration Court in 2002. Afolabi conceded that he was removable, but he applied for
adjustment of status and, in the alternative, voluntary departure. An Immigration Judge
(“IJ”) denied both applications in July 2004, and the BIA adopted the IJ’s decision on
appeal in November 2005.
Over a decade later, in April 2016, Afolabi filed a motion to reopen the removal
proceedings so that he could apply for adjustment of status based on a new visa petition.
The BIA denied the motion to reopen because it was untimely and Afolabi had failed to
show that “an exceptional situation exists that would warrant the exercise of [the] [BIA’s]
discretion to reopen [the] proceedings sua sponte.” App. 3.
II
A motion to reopen removal proceedings must be filed within ninety days of entry
of a final administrative order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
2

Case: 16-4291

Document: 003112625829

Page: 3

Date Filed: 05/18/2017

§ 1003.2(c)(2). Where, as here, a motion to reopen is untimely, the BIA may exercise its
discretion to reopen proceedings sua sponte. 8 C.F.R. § 1003.2(a). The BIA will only
exercise this discretion in “exceptional situations,” and even the “presence of an
exceptional situation does not compel it to act; the BIA may still decide against
reopening.” Sang Goo Park v. Att’y Gen., 846 F.3d 645, 650 (3d Cir. 2017).
Given the BIA’s “essentially unlimited” and “[n]ear [a]bsolute” discretion in this
context, this Court generally lacks appellate jurisdiction to review the BIA’s decision to
deny sua sponte reopening. Id. at 650-51. As our Court recently clarified in Sang Goo,
there are two exceptions to this general “rule against review”: (1) where the BIA relied
on an incorrect legal premise in denying the motion to reopen; or (2) where the BIA
“[h]as [c]onstrained [i]ts [d]iscretion through [r]ule or [s]ettled [c]ourse of
[a]djudication.” Id. at 651. Afolabi does not argue that either exception applies to his
case.1
III
Accordingly, Afolabi’s petition for review will be dismissed for lack of appellate
jurisdiction.

1

In fact, Afolabi has not filed a reply brief or otherwise challenged the Attorney
General’s argument that this Court lacks appellate jurisdiction over his petition.
3