Bandele Adekunle Adeniye v. U.S. Attorney General
16-15371
| 11th Cir. | Dec 12, 2017Background
- Adeniye, a Nigerian national admitted as an LPR in 1993, had a 1995 conviction (possession of stolen mailbox keys, 18 U.S.C. § 1704) with a 24-month sentence and a 2014 conviction (failure to surrender/escape) for which he received 13 months.
- DHS initiated removal proceedings in 2015 charging removal as an aggravated felon under INA § 101(a)(43)(Q) based on the 2014 failure-to-surrender conviction, which was grounded in the 1995 underlying offense.
- At the IJ hearing Adeniye argued the underlying 1995 offense was not “punishable by” five or more years because he received 24 months; the IJ and later the BIA concluded “punishable by” refers to the statutory maximum (10 years), so the offense met the aggravated-felony definition.
- Adeniye sought former INA § 212(c) relief (waiver) and later § 212(h) relief; the IJ and BIA found him ineligible for § 212(c) because the removal-conduct conviction occurred after § 212(c)’s repeal (post‑1997), and the BIA found § 212(h) relief unavailable on a stand‑alone basis for a deportable LPR.
- Adeniye filed two earlier petitions for review but failed to pay filing fees and those were dismissed; the only live petition challenged the BIA’s denial of his second motion to reopen (seeking to reassert § 212(c) eligibility based on an earlier 1996 show‑cause order).
- The BIA denied the second motion to reopen as procedurally barred: the evidence and arguments were available earlier and Adeniye failed to challenge § 212(c) in his counseled BIA appeal. The Court denied the petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA abused discretion by denying Adeniye’s second motion to reopen | Adeniye: Documents and argument showing deportation proceedings began in 1996 (pre‑repeal) are new and entitle him to reopen to seek § 212(c) relief | BIA/DHS: Evidence was available earlier; Adeniye could have raised § 212(c) eligibility before IJ/BIA and failed to do so in his counseled appeal | Denied — BIA did not abuse discretion: evidence/arguments were previously available and Adeniye abandoned/chose not to raise them earlier |
| Whether the underlying 1995 offense is “punishable by” ≥5 years such that the 2014 conviction is an aggravated felony | Adeniye: Use actual sentence (24 months) to determine whether underlying offense was punishable by ≥5 years | DHS/BIA: “Pursishable by” refers to statutory maximum, here 10 years, so it meets the ≥5‑year threshold | Not reached on merits in this petition (prior BIA decision upheld statutory‑maximum approach; this Court lacked jurisdiction to review that earlier final order here) |
| Jurisdiction to review prior BIA decisions and IJ merits rulings | Adeniye: Requests review of BIA’s dismissal of his appeal and earlier denial of motion to reopen | Government: Those prior petitions were dismissed for failure to pay fees; appellate jurisdiction is limited to timely petitions | Court: Lacked jurisdiction over earlier final orders; only the denial of the second motion to reopen was properly before the Court |
| Whether § 212(h) was available standalone to a deportable LPR | Adeniye: § 212(h) could provide relief based on family‑hardship considerations | DHS/BIA: After 1996 changes, § 212(h) is not available as a standalone application for deportable LPRs not seeking admission or adjustment | BIA correct: § 212(h) not available on a stand‑alone basis to deportable LPR in these circumstances |
Key Cases Cited
- Poveda v. U.S. Att’y Gen., 692 F.3d 1168 (11th Cir. 2012) (explaining § 212(h) availability post‑1996 changes)
- Verano‑Velasco v. U.S. Att’y Gen., 456 F.3d 1372 (11th Cir. 2006) (standard for motions to reopen: new, material evidence not previously available)
- Dakane v. U.S. Att’y Gen., 399 F.3d 1269 (11th Cir. 2005) (statutory filing period for petitions for review is jurisdictional)
- Stone v. INS, 514 U.S. 386 (U.S. 1995) (separate timely petitions required for separate final orders)
- Patel v. U.S. Att’y Gen., 334 F.3d 1259 (11th Cir. 2003) (failure to timely seek review deprives appellate jurisdiction)
- Jiang v. U.S. Att’y Gen., 568 F.3d 1252 (11th Cir. 2009) (standard of review: abuse of discretion for denial of motions to reopen)
- Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226 (11th Cir. 2005) (issues not raised on appeal are abandoned)
- Alanis‑Bustamante v. Reno, 201 F.3d 1303 (11th Cir. 2000) (context on § 212(c) repeal and transitional issues)