AKINMULERO v. HOLDER, 433 Fed.Appx. 663 (10th Cir. 2011)

No. 10-9538.United States Court of Appeals, Tenth Circuit.
August 15, 2011.

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Petition for Review.

Joan Carol Bennett, Immigration Notary Services, Conroe, TX, for Petitioner.

DOH/EOIR/BIA, Attn: Certification Unit, Falls Church, VA, General Counsel, Kristen A. Giuffreda Chapman, Esq., Shelley Goad, Julia Tyler, United States Department of Justice, Washington, DC, John Longshore, Director, United States Immigration Custom Enforcement, Denver, CO, for Respondent.

Before BRISCOE, Chief Judge, EBEL and O’BRIEN, Circuit Judges.

ORDER AND JUDGMENT[*]

TERRENCE L. O’BRIEN, Circuit Judge.

Since being deported in 1986, Nelson Lash Akinmulero has engaged in a relentless, and so far successful, campaign to remain in this country. The procedural history of his efforts is complicated and convoluted, but the law governing this appeal is clear. Akinmulero asks this court to review the Board of Immigration Appeal’s refusal to reconsider its denial of his second motion to reopen an order of removal. His goal is to obtain various forms of relief all of which call upon us to exceed our limited jurisdiction. We therefore dismiss the petition.

Procedural Background

Akinmulero was deported in March 1986 for overstaying the time permitted by his student visa. He illegally returned to the United States three months later. In March 1998, he was placed in new removal proceedings in Utah where his request for cancellation of removal was denied because he failed to show his removal would result in exceptional and unusual hardship for his American-citizen daughter. Nevertheless he was afforded the opportunity of voluntary departure. He did not leave, but he did appeal to the Board of Immigration Appeals (BIA). It agreed with the Immigration Judge and dismissed the appeal. Admin. R. at 152. He petitioned for review

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by this court. Lacking jurisdiction to review the extreme-hardship determination, we dismissed his petition Akinmulero v. INS, 35 Fed.Appx. 779, 780 (10th Cir. 2002).

In June 2002, a month after this court dismissed his petition for review, Akinmulero timely filed his first motion to reopen with the BIA. He claimed 1) his daughter would soon be old enough to sponsor him for an immigrant visa and 2) he was in the process of trying to establish his membership in a class of plaintiffs challenging the administration of certain INS regulations (a successful challenge might entitle class members to stays of deportation). See, e.g., Proyecto San Pablo v. INS, No. CIV 89-456-TUC-WDB, 2001 WL 36167472, at *1-2 (D.Ariz. Feb. 2, 2001) (hereafter “Proyecto
class”).[1] The BIA denied the motion to reopen because he had overstayed the grant of voluntary departure and therefore was subject to a ten-year bar before he would be eligible for further relief. Admin. R. at 115. No mention was made of Akinmulero’s efforts to establish his claimed membership in th Proyecto class.

Some seven years later, Akinmulero filed yet another motion to reopen. In it, he indicated he was still waiting for a determination regarding his membership in the Proyecto
class; he stated he wanted to again challenge his original “arrest, detention and the imposed voluntary departure”; and he asked the BIA to waive its time and number limitation on motions to reopen.[2] Id. at 94. The BIA denied the motion to reopen concluding it was “untimely and number barred” and Akinmulero did “not present an exceptional situation which would warrant sua sponte reopening.” Id. at 83.

It also declined to reopen simply to permit Akinmulero additional time to establish his claimed membership in th Proyecto class, noting neither the BIA nor Immigration Judges have jurisdiction over legalization applications such as those at issue in Proyecto San Pablo. Id. Finally, assuming Akinmulero was eligible for adjustment of status under 8 U.S.C. § 1255(i), [3] his new found status would not save his motion because “[b]ecoming eligible for relief from removal after a final administrative order has been entered is common and does not, in itself, constitute an exceptional situation warranting our consideration of an untimely and number barred motion.” Id. at 83-84. He did not seek judicial review.

Instead he filed a motion for reconsideration with the BIA. The BIA denied the motion, thus generating the order currently under our review. In its denial, the BIA made three points: (1) there were “no material factual or legal errors” in its earlier decision; (2) it had no jurisdiction over Akinmulero’s adjustment-of-status application

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brought under 8 U.S.C. § 1255a, and thus there was no error in refusing to reopen sua sponte on that basis;[4] and (3) the fact he had been cleared to apply for adjustment of status under 8 U.S.C. § 1255(i) was not an exceptional situation warranting sua sponte reopening. Id. at 2.

Discussion[5]

Akinmulero’s opening brief begins with a red herring — a reference to a notice from the United States Citizenship and Immigration Services (USCIS) office in Houston, in an entirely different matter, informing him “all action on your Form I-485 application is hereby administratively closed.” See
Pet’r’s Opening Br., Attach. 1 at 2.[6] The notice was addressed to Akinmulero’s correct street address and zip code in Conroe, Texas, but it did not contain an apartment number. He claims not to have received the notice and to have been prejudiced thereby. We have no jurisdiction to consider this unexhausted issue. There is no indication he ever argued to the IJ or the BIA that the failure of the USCIS to properly notify him of its administrative closure of his 1-485 application was a sufficient reason to reopen this case.[7]
The offending notice is not contained in the administrative record and appears for the first time as an attachment to his opening brief in this court. He has

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thus failed to exhaust his administrative remedies under the rule of Riverar-Zurita v. INS, 946 F.2d 118, 120
n. 2 (10th Cir. 1991), thereby foreclosing the notice issue and depriving this court of jurisdiction to consider it. See id. (“The failure to raise an issue on appeal to the Board constitutes failure to exhaust administrative remedies with respect to that question and deprives the Court of Appeals of jurisdiction to hear the matter.”)

Akinmulero next argues his second motion to reopen was not number barred. With an exception inapplicable here, an alien is allowed to file only one motion to reopen. 8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(2). Thus, an alien seeking to file a second motion to reopen must rely on the BIA’s authority to “reconsider on its own motion any case in which it has rendered a decision.”8 C.F.R. § 1003.2(a) (emphasis added). Akinmulero’s argument is, in essence, an effort to secure reversal of the BIA’s decision declining to reopen his case sua sponte. Because the decision to reopen sua sponte is committed to the sole discretion of the BIA, we have no jurisdiction to review it. See Infanzon v. Ashcroft, 386 F.3d 1359, 1361 (10th Cir. 2004) Belay-Gebru v. INS, 327 F.3d 998, 1000-01 (10th Cir. 2003).

Akinmulero’s brief is hopelessly muddled on the next point, but, as we understand it, he seems to think this court should somehow require his status in the Proyecto class be determined at the earliest opportunity by the proper authority. He is in the wrong court, in the wrong circuit, at the wrong time with this argument. The jurisdictional problem seems self evident. Indeed, he identifies no basis upon which we could issue such an order, and we discern none.[8]

Finally, Akinmulero requests this court to order the USCIS “to promptly adjudicate his case under [the Administrative Procedures Act].” Opening Br. at 20 (type-face altered). But again he points to nothing permitting such an order from this court in the first instance[9]

The petition for review is DISMISSED.