[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-13013 MARCH 20, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
Agency No. A077-269-452
FRANKLIN MBITANG ENOH,
llllllllllllllllllllllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllllRespondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(March 20, 2012)
Before WILSON, PRYOR, and KRAVITCH, Circuit Judges.
PER CURIAM:
Franklin Mbitang Enoh, a native and citizen of Cameroon, petitions for
review of the Board of Immigration Appeals (“BIA”) order denying his second
motion to reopen his case for asylum and withholding of removal under the
Immigration and Nationality Act (“INA”). First, he argues that the BIA abused its
discretion in denying his second motion to reopen because his counsel’s
ineffective assistance created exceptional circumstances and caused him to receive
insufficient notice of his hearing. Second, Enoh argues that he presented evidence
of extrajudicial killings in Cameroon and that the BIA therefore abused its
discretion in alternatively finding that he did not demonstrate changed country
conditions that could excuse his time- and numerically-barred second motion to
reopen. Upon review, we dismiss the petition in part and deny the petition.
Enoh originally applied for asylum and withholding of removal in 1999. He
failed to appear for his removal hearing that was held on May 23, 2001. As a
consequence, the Immigration Judge (“IJ”) deemed his application for relief
abandoned and ordered him removed in absentia. In June 2009, over eight years
later, Enoh moved to reopen his case, alleging ineffective assistance of counsel
and changed country conditions in Cameroon. Both the IJ and the BIA denied the
motion. Enoh filed a second motion to reopen his removal proceedings that is
2
based on the same grounds as his first motion. The BIA found the motion had no
merit, and it denied his second motion.
“We review the denial of a motion to reopen for an abuse of discretion.”
Lonyem v. U.S. Att’y Gen., 352 F.3d 1338, 1340 (11th Cir. 2003) (per curiam).
Our review is limited to determining whether the BIA exercised its discretion in an
arbitrary or capricious manner. Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th
Cir. 2005) (per curiam). The BIA’s factual findings are “conclusive unless a
reasonable factfinder would be compelled to conclude to the contrary.” Lonyem,
352 F.3d at 1340.
If an alien fails to appear for a removal hearing, his application will be
denied. 8 U.S.C. § 1229a(b)(5)(A). Ordinarily, an alien may file only one motion
to reopen his removal proceedings, 8 U.S.C. § 1229a(c)(7)(A), which must be filed
within ninety days of the entry of a final administrative order of removal, 8 U.S.C.
§ 1229a(c)(7)(C). Time and numerical limitations on motions to reopen, however,
do not apply when “(1) an alien files a motion to reopen that seeks asylum,
withholding of removal, or relief under the Convention Against Torture; (2) the
motion is predicated on changed country conditions; and (3) the changed
conditions are material and could not have been discovered at the time of the
3
removal proceedings.” Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir.
2009) (citing 8 C.F.R. § 1003.23(b)(4)(i)).
Enoh already filed a motion to reopen based on his counsel’s alleged
ineffective assistance, and he cannot file a second. See 8 C.F.R. §
1003.23(b)(4)(ii). Therefore, Enoch’s petition is dismissed insofar as it seeks to
reopen removal proceedings on this ground. Additionally, time and numerical
limitations are not suspended for his application for asylum and withholding of
removal because Enoh has failed to show that conditions in Cameroon have
changed. The evidence Enoh submitted regarding extrajudicial killings parallels
the evidence that he submitted to support his original asylum application in 1999.
Therefore, we deny his petition insofar as it seeks to reopen proceedings based on
these grounds.
PETITION DISMISSED IN PART AND DENIED IN PART.
4