United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 3, 2007
Charles R. Fulbruge III
Clerk
No. 05-61171
Summary Calendar
ROWLAND EGHRE AKPOJIYOVWI,
Petitioner,
versus
ALBERTO R. GONZALES, U. S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
(BIA No. A78 999 162)
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Petitioner Rowland Eghre Akpojiyovwi, a native and citizen of
Nigeria, petitions for review of the decision of the Board of
Immigration Appeals (BIA) dismissing his appeal from the denial of
his applications for asylum, withholding of removal, and relief
under the Convention Against Torture (CAT). Akpojiyovwi sought
relief based on his fear that his two minor daughters would be
forced to undergo female genital mutilation (FGM) if he were
removed to Nigeria.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Akpojiyovwi argues that the BIA improperly engaged in fact-
finding and clarified the immigration judge’s (IJ) decision when the
case was remanded for clarification of the basis for the BIA’s
decision. On remand, the BIA made clear that it was adopting the
IJ’s determination that Akpojiyovwi’s asylum application was
untimely. Accordingly, Akpojiyovwi’s argument is misplaced.
Akpojiovwi also contends that the IJ erred in determining that
his asylum application was barred by the one-year filing deadline
in 8 U.S.C. § 1158(a)(2)(B). He contends that the deadline should
have been extended under 8 C.F.R. § 208.4 because of changed
circumstances based on the fact that his daughters entered the
United States before he did, they could not apply for asylum as
minors, and because his daughters were reaching the age of
circumcision in his family which was around ten years old. We lack
jurisdiction to review the BIA's determination that Akpojiyovwi's
asylum claims are time-barred and that no exception to the one-year
filing requirement applies. 8 U.S.C. § 1158(a)(3).
We also lack jurisdiction to address Akpojiyovwi’s claim of
humanitarian asylum, because Akpojiyovwi did not exhaust this claim
by raising it before the BIA. See Roy v. Ashcroft, 389 F.3d 132,
137 (5th Cir. 2004). Accordingly, Akpojiyovwi’s challenge to the
dismissal of his asylum application as untimely is dismissed.
There is substantial evidence to support the BIA’s
determination that Akpojiyovwi did not meet the standards for
withholding of removal or obtaining relief under the CAT. See
2
Tamara-Gomez v. Gonzales, 447 F.3d 343, 347 (5th Cir. 2006); 8
C.F.R. § 1208.16(b)(2) & (c). The BIA found that the practice of
FGM was declining in Nigeria and that Akpojiyovwi had not shown that
he and his daughters could not safely relocate within the country.
Akpojiyovwi has not shown that the evidence compels a contrary
conclusion. See Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994).
Finally, Akpojiyovwi argues that the denial of relief violates
the Equal Protection Clause in light of the Sixth Circuit’s decision
in Abay v. Ashcroft, 368 F.3d 634 (6th Cir. 2004), which determined
that a mother and daughter met the definition of refugees based on
their asserted fear of the daughter being forced to undergo FGM if
they were returned to Ethiopia. He contends that his situation is
the same.
The Equal Protection Clause protects similarly situated persons
from being treated differently without a rational basis. See United
States v. Abou-Kassem, 78 F.3d 161, 165 (5th Cir. 1996).
Akpojiyovwi cannot establish an equal protection claim based on
Abay, because his asylum claims were denied as time-barred. Thus
he was not similarly situated to the petitioners in that case. To
the extent that he seeks withholding of removal, he has not shown
that the situation in Nigeria, where the incidence of FGM is 50-60%
of the female population and has been outlawed in several regions,
is similar to the situation the petitioners in Abay encountered in
Ethiopia, where the practice had not been outlawed and was almost
universal. Abay, 368 F.3d at 639.
3
The petition for review is DISMISSED as to Akpojiyovwi’s asylum
claims and DENIED as to his remaining claims. Akpojiyovwi’s
counsel’s motion to withdraw is DENIED.
4