U.S.

Department of Justice
Executive Office for Immigration Review

Board of Immigration Appeals

Office of the Clerk
5107 leesburg Pike, Suite 2000
Falls Church. Virginia 20530

SULEMAN, FATAi A.

GREENBELT, MD 20770

Name: AKINNIYI, KOYODE

A 093-014-174

Date of this notice: 3/12/2015

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

DOY1.Jt4._, cl1/VL)
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Holmes, David B.

Userteam:

Docket

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Cite as: Koyode Akinniyi, A093 014 174 (BIA March 12, 2015)

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AMITY & SULEMAN, P.A.

7501 GREENWAY CENTER DRIVE, SUITE
450

OHS LIT/York Co. Prison/ALW

3400 Concord Road
York, PA 17402

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church. Virginia 20530

OHS LITNork Co. Prison/ALW

20340-424/A093-014-174
2303 AUTUMN DRIVE
TOMS RIVER, NJ 08755-0000

3400 Concord Road

York, PA 17402

Name: AKINNIYI, KOYODE

A 093-014-174

Date of this notice: 3/12/2015

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy.

Your attorney or representative has been served with this

decision pursuant to 8 C.F.R. 1292.S(a).

If the attached decision orders that you be

removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Sincerely,

Donna Carr
Chief Clerk

Enclosure
Panel Members:
Holmes, David B.

Userteam:

Cite as: Koyode Akinniyi, A093 014 174 (BIA March 12, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

AKINNIYI, KOYODE

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 20530

File:

A093

014 174- York, PA

Date:

MAR 1 2 2015

In re: KOYODE AKINNIYI

MOTION
ON BEHALF OF RESPONDENT:
ON BEHALF OF DHS:

Fatai A. Suleman, Esquire

William E. Lore
Senior Attorney

APPLICATION: Reissuance
REISSUED DECISION
ORDER:

2015, the Department of Homeland Security (DHS) submitted a motion for

reissuance of the Board's December 9, 2014, decision dismissing the respondent's appeal. The
On February 6,

DHS reports that the respondent mistakenly filed his petition for review of the Board's decision
at the wrong location. It also notes that the Office of Immigration Litigation has asked the DHS
to file the instant motion.
Given the totality of the circumstances presented in the unopposed motion, we will grant the
motion to reissue, and the Board's December

9, 2014, decision will be reissued and treated as if

entered on today's date. Accordingly, the motion to reopen is granted.

FURTHER ORDER: The Board's decision dated December

9, 2014, attached hereto, is

hereby reissued and shall be treated as entered as of today's date.

--

FOR THE BOARD

Cite as: Koyode Akinniyi, A093 014 174 (BIA March 12, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

'\

"

U.S. Department of Justice

Decision of

Executive Office for Immition Review

th'oard

of Immigration Appeals

Falls Church, Virginia 20530

File:

A093 014 174 - York, PA

Date:

DEC

In re: KOYODE AKINNIYI

92014

APPEAL
ON BEHALF OF RESPONDENT:

Fatai Suleman, Esquire

CHARGE:
Notice:

Sec.

237(a)(2)(A)(iii), I&N Act [8 U.S.C.

Convicted of aggravated felony

1227(a)(2)(A)(iii)] -

APPLICATION: Reopening

The respondent, a native and citizen of Nigeria, appeals from the Immigration Judge's
July 24, 2014, decision denying his motion to reopen his removal proceedings.1 The Deparbnent
of Homeland Security has not responded to the appeal. The appeal will be dismissed.
We adopt and affirm the Immigration Judge's denial of the respondent's motion to reopen.
See generally, Matter of Burbano, 20 l&N Dec. 872, 874 (BIA 1994).
For the reasons
articulated in his decision, we agree with the Immigration Judge that the respondent has not
established an exception to the time limitations for filing a motion to reopen or that

sua

sponte

reopening is warranted. 2 See section 240(c)(7)(C)(i) of the Immigration and Nationality Act,

8 U.S.C. 1229a(c)(7)(C)(i); 8 C.F.R. 1003.23(b)(l); see also Matter of G-D-, 22 l&N

Dec. 1132, 1133-34 (BIA 1999) (Board exercises its sua sponte authority "sparingly, treating it
not as a general remedy for any hardships created by enforcement of the time and number
limited in the motions regulations, but as an extraordinary remedy reserved for truly exceptional
,,
situations. )
The respondent has

not

shown that

his

prior

representatives

provided

ineffective

representation or, even if they did, that he was prejudiced by it (I.J. at 7, 8). Moreover, he has

not shown that he exercised due diligence in his removal proceedings (I.J. at 7). Accordingly, he
has not shown that a truly exceptional situation warrants reopening. Matter ofG-D-, supra. For
these reasons, we further conclude that the respondent has not established that ineffective

The record reflects that although the Immigration Judge dated his decision July 7, 2014, it was
issued on July 24, 2014. Accordingly, the respondent's appeal was timely filed.
2 The Immigration Judge did not consider the respondent's motion to reopen barred by the
number limitations for filing motions to reopen (I.J. at 8).

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IN REMOVAL PROCEEDINGS

,.-

A093 014174

assistance of counsel warrants the equitable tolling of the filing deadline for his motion to reopen.

See Alzaarir v. U.S. Atty Gen., 639 F.3d 86, 90 (3d Cir. 2011).

conclude that conditions in Nigeria have materially changed since the time of his hearing in such
a way that would provide a factual basis that did not previously exist for his claim for asylum,
withholding of removal, or protection under the Convention Against Torture. We are not
persuaded by the respondent's contention on appeal that the Immigration Judge required
"a conclusive showing" of eligibility for asylum for the purpose of establishing that reopening is
warranted 3 (Respondent's Notice of Appeal).
Rather, the Immigration Judge properly
determined that the respondent has not shown prima facie eligibility for asylum, withholding of
removal, or protection under the Convention Against Torture (I.J. at 9-12). See INS v. Doherty,
502 U.S. 314 (1992); Matter of Coelho, 20 I&N Dec. 464, 471-72 (BIA 1992); see also
INSv. Abudu, 485 U.S. 94, 104-05 (1988) (a motion to reopen may be denied when a movant
does not establish prima facie eligibility for the underlying relief sought). For these reasons, we
affirm the Immigration Judge's decision and will dismiss the respondent's appeal.
ORDER: The appeal is dismissed.

FOR THE BOARD

We note that as an alien convicted of an aggravated felony, the respondent would be ineligible

for asylum in any event. Sections 208(b)(2)(A)(ii) and 208(b)(2)(B)(i) of the Act, 8 U.S.C.
1158(b)(2)(A)(ii), (B)(i). The respondent's allegations of ineffective assistance of counsel are
not related to the Immigration Judge's January 29, 2003, determination that he is removable as
an alien convicted of an aggravated felony.

Immigrant & Refugee Appellate Center | www.irac.net

We further agree with the Immigration Judge that the respondent has not established that
changed conditions arising in Nigeria provide an exception to the filing deadline for his motion
to reopen. See section 240(c)(7)(C)(ii) of the Act, 8 U.S.C. 1229a(c)(7)(C)(ii); 8 C.F.R.
1003.23(b)(4)(i). The respondent has not presented evidence from which it is reasonable to