UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-2490
OLUFUNSHO AYOADE,
Petitioner,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A72-726-177)
Submitted: May 23, 2005 Decided: June 28, 2005
Before LUTTIG, NIEMEYER, and KING, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Lloyd F. Ukwu, Washington, D.C., for Petitioner. Peter D. Keisler,
Assistant Attorney General, Michelle Gorden, OFFICE OF IMMIGRATION
LITIGATION, Washington, D.C.; Brian Galle, DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Olufunsho Ayoade, a native and citizen of Nigeria,
petitions for review of the Board of Immigration Appeals’ (Board)
order denying her motion to reopen and remand her removal
proceedings. We deny her petition.
We note it is undisputed that Ayoade’s motion to reopen
was untimely by over five years. See 8 C.F.R. § 1003.2(c)(2)
(2004) (requiring a motion to reopen to be filed within ninety days
of the final administrative decision). In 1993, she filed a notice
of appeal of the immigration judge’s decision,* but neither she nor
her former attorney filed any further documents relating to her
appeal. In 1998, after giving Ayoade the opportunity to file new
briefs in light of amendments to the immigration statutes, the
Board dismissed her appeal as “moot” and “abandoned.” She did not
file her motion to reopen until 2004, over five years after her
appeal was dismissed.
However, the time period for filing a motion to reopen may be
subject to equitable tolling. See Socop-Gonzalez v. INS, 272 F.3d
1176, 1190-93 (9th Cir. 2001). Ayoade argues that her motion is
subject to equitable tolling because she received ineffective
assistance of counsel during the appeal of the immigration judge’s
*
The record reflects Ayoade filed her notice of appeal pro se
and by hand, and the attorney representing her before the
immigration judge never filed a notice of appearance with the
Board.
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decision to the Board. She argues her counsel misled her into
believing he was representing her in the appeal and never informed
her that the appeal was dismissed. We note that over ten years
passed between the filing of her notice of appeal and the time at
which Ayoade indicates she first became aware that her appeal had
been dismissed. We find that equitable tolling is not warranted in
these circumstances. For this reason, we decline to find the Board
abused its discretion in dismissing her motion to reopen as
untimely.
Accordingly, we deny Ayoade’s petition for review. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
PETITION DENIED
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