Koyode Akinniyi v. Attorney General United States, 629 F. App'x 425

Koyode Akinniyi, a Nigerian national and U.S. lawful permanent resident since 1990, was convicted in 2002 of fraud involving access devices causing a $34,000 loss and was placed in removal proceedings as an aggravated felon.
An Immigration Judge (IJ) found him removable in late 2002 and determined he had abandoned asylum after failing to file an application; that decision was mailed to his then-attorney Sandra Greene, and Akinniyi did not appeal.
In May 2010 Akinniyi’s new counsel filed a motion to reopen claiming the removal order was in absentia; the IJ denied it because the order had not been entered in absentia. Akinniyi did not appeal that denial.
In 2014 Akinniyi filed a second motion to reopen, asserting ineffective assistance by Greene (failure to file asylum application and to notify him of the IJ’s decision) and by his 2010 counsel (filing the wrong type of motion), seeking equitable tolling and sua sponte reopening.
He also invoked the changed-country-conditions exception based on Boko Haram’s emergence and claimed membership in alleged social groups making him likely to be persecuted.
The IJ and the Board of Immigration Appeals (BIA) denied reopening for lack of due diligence (defeating equitable tolling), inadequate showing of ineffective assistance, and failure to establish a material change or prima facie asylum eligibility. Akinniyi petitioned for review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether alleged ineffective assistance supports equitable tolling of the time limit for a motion to reopen	Greene’s failure to file asylum application and to notify him, plus later counsel’s procedural error, justify equitable tolling	BIA/IJ: Akinniyi failed to act with due diligence for years after counsel’s alleged errors, so tolling is not warranted	Denied — equitable tolling fails as a matter of law for lack of due diligence
Whether changed-country-conditions (Boko Haram) satisfies exception to 90-day filing rule and shows prima facie asylum eligibility	Boko Haram’s rise and Akinniyi’s status (Westernized; child born out of wedlock) materially changed conditions and create well-founded fear	BIA: Evidence shows Boko Haram activity remote to Akinniyi’s region; he failed to show cognizable social groups or likelihood of persecution	Dismissed for lack of jurisdiction — BIA’s factual findings on changed conditions and asylum eligibility are unreviewable by this court

Alzaarir v. Att’y Gen., 639 F.3d 86 (3d Cir.) (ineffective assistance can support equitable tolling if proven with due diligence)
Mahmood v. Gonzales, 427 F.3d 248 (3d Cir.) (lack of diligence defeats tolling even if attorney conduct could warrant it)
Sukwanputra v. Gonzales, 434 F.3d 627 (3d Cir.) (BIA fact findings reviewed for substantial evidence; changed-circumstances determinations are factual and often unreviewable)
Jarbough v. Att’y Gen., 483 F.3d 184 (3d Cir.) (challenges to BIA changed-circumstances determinations are not questions of law for § 1252 review)
Camara v. Att’y Gen., 580 F.3d 196 (3d Cir.) (well-founded fear and future persecution are factual questions reviewed under substantial evidence)
Kamara v. Att’y Gen., 420 F.3d 202 (3d Cir.) (deference to IJ factual findings adopted by BIA)
Borges v. Gonzales, 402 F.3d 398 (3d Cir.) (due diligence can be assessed as a matter of law when facts are established)