### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14

- 60698 Summary Calendar

OBINNA IKENNA EZEOKOLI , Petitioner

v. LORETTA LYNCH, U. S. ATTORNEY GENERAL , Respondent

Petition for Review of an Order of the Board of Immigration Appeals BIA No. A087 036 429

Before KING, CLEMENT, and OWEN, Circuit Judges. PER CURIAM: * Obinna Ikenna Ezeokoli, a citizen and native of Nigeria, petitions this court for review of the order of the Board of Immigration Appeals (BIA) denying his motion to reopen his removal proceedings to seek adjustment of status under the Violence Against Wom en Act (VAWA). Ezeokoli argues that the BIA erred by dismissing his motion to reopen as untimely. He maintains that the

one
- year statute of limitations applied by the BIA does not apply to him

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED January 15, 2016

Lyle W. Cayce Clerk Case: 14-60698 Document: 00513344919 Page: 1 Date Filed: 01/15/2016N o. 14

- 60698

2 because he was physically present in the United States at the time of the filing of the motion to reopen and has been in the United States continuously since
2007. He asserts that the one

- year statute of limitations does not apply to him pursuant to 8 U.S.C. § 1229a(c)(7)(A) because he was in removal proceedings

an d the motion to reopen was for adjustment of status under the VAWA. In reviewing the BIA’s “denial of a motion to reopen, this court applies a highly deferential abuse

- of

- di scretion standard

. ” Gomez

- Palacios v. Holder , 560 F.3d 354, 358 (5th Cir. 2009) . The BIA does not abuse its discretion in denying a motion to reopen if the denial “ is not capricious, without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach.” Id. The normal 90

- day time period for filing a motion to reopen does not apply to a battered spouse seeking relief under the VAWA if, and only if, all four of the conditions listed in the statute are met. See § 1229a(c)(7)(C)(iv). Thus, while Ezeokoli was p hysically present in the United States at the time of the filing of the motion to reopen and this is one of the required conditions for the suspension of the normal 90

- day limitations period for filing a motion to reopen, see § 1229a(c)(7)(C)(iv)(IV), Ezeo koli’s motion to reopen was still untimely because he did not file it within one year of the entry of the final order of removal. See § 1229a(c)(7)(C)(iv)(III). Ezeokoli’s reliance on § 1229a(c)(7)(A) is misplaced because that provision concerns the nume rical limitation on motions to reopen, and it does not concern the time limitations for motions to

reopen. See § 1229a(c)(7)(A). As Ezeokoli’s motion to reopen was not filed within one year of the entry of the final order of removal, the BIA correctly
de termined that it was untimely, and Ezeokoli could only obtain relief if the BIA waived the time limitation because he showed extraordinary circumstances or extreme hardship to his child. See § 1229a(c)(7)(C)(iv)(III). Case: 14-60698 Document: 00513344919 Page: 2 Date Filed: 01/15/2016N o. 14

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3 Ezeokoli argues that the BIA abused its discretion by ruling that he had not shown extraordinary circumstances justifying the waiver of the limitation s
p eriod . He maintains that he was not able to file his motion to reopen within one year of the entry of the final order of removal because he did not file his I

360 petition under the VAWA within one year of the final entry of removal. He contends that the BIA has not updated its regulations since the passage of the VAWA and regularly fails to consider the special circumstances surrounding

p etitions under the VAWA. According to Ezeokoli, the mistreatment and battering he received at the hands of his wife constitute d extraordinary circumstances justifying the waiver of the limitations period. We do not have jurisdiction to review a decision of the BIA in a removal proceeding, except for an asylum ruling, “which is specified under [the relevant subchapter at issue in this case] to be in the discretion of the Attorney General or the Secretary of Homeland Security.” 8 U.S.C. § 1252(a)(2)(B)(ii ). We retain jurisdiction to consider “constitutional claims or questions of law.” § 1252(a)(2)(D).
The sta tutory provision at issue here specifies that the time limitation may be waived “in the Attorney General’s discretion.” § 1229a(c)(7)(C)(iv)(III)

. Thus, the ruling that Ezeokoli is seeking to challenge is a discretionary determination that we do not have jurisdiction to consider. See § 1252(a)(2)( B ) (ii) ; Kucana v. Holder , 558 U.S. 233, 237 (2010) ; Joseph v. Lynch , 793 F.3d 739, 741 (7th Cir. 2015 ). We do not have jurisdiction under § 1252(a)(2)(D) because Ezeokoli does not raise any constitutional claims or questions of law. Accordingly, this portion of Ezeokoli’s petition for review is
dismissed. See Ramos

- Bonilla v. Mukasey , 543 F.3d 216, 2 20 (5th Cir. 2008). PETITION FOR REVIEW DENIED IN PART, DISMISSED IN PART. Case: 14-60698 Document: 00513344919 Page: 3 Date Filed: 01/15/2016