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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-16266
Non-Argument Calendar
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Agency No. A087-458-478
AYO OMOAREGBA OYAKHIRE,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(March 23, 2018)
Before JORDAN, JULIE CARNES, and HULL, Circuit Judges.
PER CURIAM:
Ayo Omoaregba Oyakhire, proceeding pro se, petitions this Court for review
of the decision of the Board of Immigration Appeals rejecting his appeal from an
Immigration Judge’s decision denying a motion to reopen and reconsider his
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removal proceedings. We dismiss Mr. Oyakhire’s petition in part and deny it in
part.
I
Mr. Oyakhire is a native and citizen of the Federal Republic of Nigeria. He
entered the United States in November of 1997 on an H1-B visa with temporary
authorization to remain in the country, but overstayed his visa. On January 31,
2008, he was convicted of two counts of family violence battery, Ga. Code Ann. §
16-5-23.1(f), three counts of simple battery, Ga. Code Ann. § 16-5-23, and one
count of disorderly conduct, Ga. Code Ann. § 16-11-39(a)(1).
On January 29, 2009, the Department of Homeland Security (“DHS”)
commenced removal proceedings by serving Mr. Oyakhire with a Notice to
Appear (“NTA”). Later that year, the DHS terminated those proceedings sua
sponte.
In 2012, the DHS issued another NTA charging Mr. Oyakhire with
removability on the grounds that he had remained in the United States for a time
longer than permitted, 8 U.S.C. § 1227(a)(1)(B), that he was an alien who had been
convicted of a crime of domestic violence after admission to the country,
§ 1227(a)(2)(E)(i), and that he was an alien who had been convicted of two crimes
involving moral turpitude not arising out of a single scheme, § 1227(a)(2)(A)(ii).
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At a hearing on June 19, 2012, Mr. Oyakhire asked the Immigration Judge
(“IJ”) for cancellation of removal. He admitted that he had overstayed his visa and
had been convicted of a domestic violence crime, but argued that, for certain
reasons, removal was not warranted. The IJ denied Mr. Oyakhire’s application for
cancellation of removal.
On July 5, 2012, Mr. Oyakhire filed a “Motion and Brief to Reopen and
Reconsider.” The Immigration Court rejected the motion for failure to include
proof of payment of the filing fee. On September 18, 2012, the Immigration Court
accepted Mr. Oyakhire’s resubmission of the motion, presumably with the
requisite fee paid. The IJ denied the motion, stating that Mr. Oyakhire failed to
identify factual or legal errors in the prior decision that would warrant
reconsideration.
After several years, in February of 2016, Mr. Oyakhire—proceeding pro
se—submitted a new filing, again styled as a motion to reconsider or reopen. The
IJ summarily denied the motion as “both number barred and time barred,” and also
addressed the merits of the motion, stating that it raised no errors of fact or law.
Mr. Oyakhire then appealed this decision to the Board of Immigration
Appeals (“BIA”), and also requested that the BIA reconsider or reopen the
proceedings under its discretionary authority. The BIA affirmed the IJ’s decision
on number-bar grounds. It acknowledged some new issues raised in Mr.
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Oyakhire’s motion before the IJ, but only considered them (and rejected them)
under its so-called “sua sponte” authority. It also rejected Mr. Oyakhire’s
contentions regarding ineffective assistance of counsel for, among other things,
failure to establish prejudice.
Mr. Oyakhire now petitions for review of the BIA’s decision.
II
We must reject Mr. Oyakhire’s petition because he has failed to challenge
certain threshold conclusions of the IJ and BIA.
A
Mr. Oyakhire has filed more than one motion that he has described as a
motion to reconsider or reopen. The IJ’s decision concluded that the 2016 filing
was number-barred and time-barred. Arguably, Mr. Oyakhire has presented
reasons both to the BIA and to us why his motion is not time-barred. He has not,
however, challenged the conclusion that his motion is number-barred either before
us or before the BIA. Accordingly, he has not preserved this argument, and we
conclude that we lack jurisdiction to hear his petition as to his motion to reopen or
reconsider his removal proceedings. See Jeune v. U.S. Atty. Gen., 810 F.3d 792,
800 (11th Cir. 2016).
Although aliens may move for reconsideration or reopening of IJ decisions,
8 U.S.C. § 1229a(c)(6), (7), the BIA may also discretionarily reconsider or reopen
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proceedings, 8 C.F.R. § 1003.2(a). We generally lack jurisdiction to review the
latter exercise of discretion—unless the failure to exercise it in turn raises, for
instance, a constitutional claim. See, e.g., See Lin v. U.S. Att’y Gen., 881 F.3d 860,
871 (11th Cir. 2018). The BIA declined to exercise its discretionary (or so-called
“sua sponte”) authority to reconsider the IJ’s decision or to grant relief to Mr.
Oyakhire on any other basis. We will not review this discretionary decision
because it lies outside of our jurisdiction to do so. See id.
B
Mr. Oyakhire also claims that the ineffectiveness of his counsel infringed on
his right to due process with regard to his 2012 motion for reconsideration. The
BIA held that, among other problems with this claim, Mr. Oyakhire failed to
demonstrate the required prejudice. We agree.
Petitioners claiming ineffective assistance of counsel must address (among
other things) prejudice. See Dakane v. U.S. Att’y Gen. 399 F.3d 1269, 1274 (11th
Cir. 2004). “[P]rejudice exists when the performance of counsel . . . may have
affected the outcome of the proceedings.” Id. Mr. Oyakhire claims that his
attorney was unsatisfactory in many respects—for example, that she was
unavailable to him—and he submitted evidence of an arbitration award recovering
some of his attorney’s fees against her, but he does not point to anything that the
attorney did or failed to do that may have affected the outcome of his proceedings.
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Accordingly, the BIA did not err in rejecting Mr. Oyakhire’s claim for relief on the
basis of ineffective assistance of counsel.
C
Mr. Oyakhire seems also to challenge the legality of his continued detention
pending his removal from the United States. To the extent he wishes to raise such
a challenge, he must do so before a United States District Court under 28 U.S.C. §
2241 rather than in these IJ/BIA proceedings before us. See, e.g., Ferry v.
Gonzales, 457 F.3d 1117, 1131 (10th Cir. 2006).
III
We dismiss Mr. Oyakhire’s petition in part and deny it in part.
DISMISSED IN PART and DENIED IN PART.
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