Akintoye Laoye v. Attorney General United State
677 F. App'x 41
| 3rd Cir. | 2017Background
- Laoye, a Nigerian national, entered the U.S. in 1996 on J-2 status and later held F-1 student status; he was charged removable in 2008 for failing to maintain full-time student status and was ordered removed.
- Laoye filed multiple motions to reopen with the BIA; those motions were denied. He previously sought review in this Court and lost.
- In October 2015 Laoye moved to reopen again, alleging (1) an IJ error in 2005 that misadvised him about adjustment eligibility and (2) ineffective assistance of counsel in 2008; he also sought to apply for asylum based on changed country conditions (Boko Haram).
- The BIA denied the motion as time- and number-barred, finding Laoye failed to show changed country conditions or meet the standards for ineffective-assistance claims, and declined to exercise sua sponte reopening.
- Laoye filed a petition for review. The Government moved for summary denial, asserting no substantial question presented. The panel granted the Government’s motion and summarily denied the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA abused its discretion in denying Laoye’s time- and number-barred motion to reopen | Laoye: IJ error in 2005 and new family-based eligibility justify reopening | Gov: Motion is untimely/number-barred and Laoye doesn’t meet any exception | BIA did not abuse its discretion; denial affirmed |
| Whether changed country conditions (Boko Haram) excuse filing limits or merit reopening/asylum | Laoye: Country conditions in Nigeria changed; he would be persecuted as part of an unspecified group | Gov: No evidence or explanation showing material changed conditions or nexus to persecution | Court: Laoye failed to present evidence or a completed, signed asylum application; BIA reasonably denied reopening |
| Whether ineffective assistance of counsel warrants equitable tolling or reopening | Laoye: Counsel’s errors in 2008 prevented timely filing | Gov: Laoye did not satisfy Lozada requirements or show extraordinary circumstances | Court: Equitable tolling not shown; Lozada standards unmet; denial affirmed |
| Whether BIA abused discretion by refusing to sua sponte reopen | Laoye: Implied challenge to BIA’s refusal to act sua sponte | Gov: No specific argument needed; Court notes limited reviewability | Court: Laoye did not preserve a basis for review of sua sponte denial; Court lacks jurisdiction over that aspect |
Key Cases Cited
- Filja v. Gonzales, 447 F.3d 241 (3d Cir.) (standards for reviewing motions to reopen)
- Sevoian v. Ashcroft, 290 F.3d 166 (3d Cir.) (BIA decisions reviewed for abuse of discretion)
- Mahmood v. Gonzales, 427 F.3d 248 (3d Cir.) (equitable tolling for ineffective assistance is extraordinary and narrowly applied)
- Laoye v. Attorney General, [citation="624 F. App'x 791"] (3d Cir. 2015) (prior panel decision addressing Laoye’s adjustment/asylum arguments)