IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-60399

OSINACHI OGEMDI EZIKE,

Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order

of the Board of Immigration Appeals

BIA No. A088 936 394

Before JOLLY, SMITH, and OWEN, Circuit Judges.

PER CURIAM:

*

I

Petitioner Osinachi Ogemdi Ezike petitions for review of two final orders

of the Board of Immigration Appeals (BIA). Ezike, a citizen of Nigeria, entered

the United States in 2001 on a student visa to study at a university in Arkansas.

In June 2008 a notice to appear charged that Ezike was removable because he

(1) had failed to attend the university from June 2006 to June 2008 in violation

United States Court of Appeals

Fifth Circuit

F I L E D

June 23, 2010

Lyle W. Cayce

Clerk

 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.

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of his conditions of admission to the United States and (2) had been convicted by

an Arkansas state court of the offense of Internet stalking of a child.

At a merits hearing held in August 2008, Ezike conceded that he last

attended his Arkansas university in June 2006 and acknowledged his Arkansas

plea of nolo contendere. The immigration judge (IJ) determined that the charges

against Ezike were correct and that he was subject to removal, and designated

Nigeria as the country of removal. The hearing was adjourned so that Ezike

might file for relief.

In September 2008, Ezike filed an application for asylum, for withholding

of removal, and for relief under the Convention Against Torture (CAT). At the

merits hearing in February 2009, Ezike presented evidence concerning his fear

of the Movement for the Actualization of the Sovereign State of Biafra

(MASSOB), a political group that he accused of having threatened him before he

left Nigeria. The IJ found that Ezike had not presented the proof of torture

needed to qualify for deferral of removal under CAT. The IJ also concluded that

Ezike was not eligible for asylum because his asylum application was untimely,

having been filed more than a year after Ezike’s arrival in the United States.

The IJ granted the Government’s motion to pretermit Ezike’s application for

withholding of removal under §241(b)(3) of the Immigration and Naturalization

Act (INA) and under CAT because Ezike’s conviction of Internet stalking was a

particularly serious crime that rendered Ezike ineligible for either type of relief.

Ezike timely appealed to the BIA. The BIA concurred with the IJ’s

determination that Ezike’s asylum application had been untimely and that Ezike

had not demonstrated that extraordinary circumstances or other factors excused

his delay; that Ezike’s Internet stalking conviction was for a particularly serious

crime and that he was consequently not entitled to withholding of removal; and

that Ezike had not shown “that he more likely than not would be tortured by, or

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with the acquiescence of, an official of the Government of Nigeria.” The BIA

therefore dismissed the appeal on April 20, 2009.

On May 18, 2009, Ezike moved this court for a stay of removal pending a

ruling on the motion to reconsider or to reopen that he was filing with the BIA

that same day. The clerk of this court filed Ezike’s motion on May, 22, 2009, and

treated it as a petition for review. The Government, too, treated the petition as

one for review of the April order of dismissal, but contended that the petition

was not timely filed according to the “prison mailbox rule.” A panel of this court

concluded that the motion had been properly filed on May 18. Ezike v. Holder,

No. 09-60399 (5th Cir. July 13, 2009). Deeming Ezike’s motion as one “for a stay

of deportation following the entry of a final order” of the BIA, the panel granted

“a temporary stay of deportation pending the filing of the administrative record

and our review thereof.” Id.

On the same day that he moved this court for a stay, Ezike moved the BIA

to reconsider its ruling or to reopen his proceeding and to stay his removal.

On June 2, 2009, Ezike filed a petition with this court, seeking review of

the April 20, 2009, dismissal of his appeal by the BIA. That filing is variously

referred to on the docket sheet as an “[a]dditional appeal” and a “[p]etition for

review,” and an “additional petition for review.”

On July 27, 2009, the BIA ruled on Ezike’s motions to reconsider and to

reopen. The BIA concluded that it had made “no material errors of fact or law”

in dismissing Ezike’s appeal, but it nevertheless sua sponte reconsidered the

claim for deferral of removal under CAT. The BIA reiterated that Ezike had not

demonstrated that the Government of Nigeria had been “willfully blind” to

MASSOB’s actions. Consequently, the BIA denied the motion to reconsider.

Additionally, it denied the motion to reopen because Ezike’s new evidence

related to postconviction proceedings, which do not affect a conviction’s finality

“unless and until” the conviction has been overturned.

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Ezike then timely sought this court’s review of the BIA’s denial of his

motions to reconsider and to reopen.

II

A

Although the issue was not raised by the parties, we must first address

whether we have jurisdiction to hear Ezike’s petition for review of the BIA’s

April 20 removal order. We review questions of subject matter jurisdiction de

novo, and may consider such questions sua sponte because “subject matter

delineations must be policed by the courts on their own initiative.” Gasch v.

Hartford Acc. & Indem. Co., 491 F.3d 278, 281 (5th Cir. 2007) (quoting Ruhrgas

AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999)).

A petition for review must be filed not later than 30 days after the date of

the final order of removal. 8 U.S.C. § 1252(b)(1). This requirement is

jurisdictional and mandatory. Stone v. INS, 514 U.S. 386, 405 (1995); NavarroMiranda v. Ashcroft, 330 F.3d 672, 676 (5th Cir. 2003); see also Bowles v.

Russell, 551 U.S. 205, 213 (2007). A motion before the BIA to reconsider does

not toll the period for filing a petition for review of the order. Stone, 514 U.S. at

405.

Ezike’s June 20, 2009, petition for review was not filed within 30 days of

the April 20 removal order. Therefore, we have jurisdiction to review the BIA’s

original order of removal only if Ezike’s May 18, 2009, motion can be considered

a petition for review.

This court liberally construes filings by pro se litigants. Sossamon v. Lone

Star State of Texas, 560 F.3d 316, 322 n.3 (5th Cir. 2009). Further, notices of

appeal are construed liberally to avoid technical barriers to review. New York

Life Ins. Co. v. Deshotel, 142 F.3d 873, 884 (5th Cir. 1998). On the other hand,

a notice of appeal must evince an intent to appeal. Mosley v. Cozby, 813 F.2d

659, 660 (5th Cir. 1987) (“Because the primary relief sought in Mosley’s . . .

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pleading is reconsideration, and leave to appeal is sought only if reconsideration

is denied, we conclude that the document does not ‘clearly evince his intent to

appeal.’” (internal bracketing omitted)).

Ezike’s May 18 motion requested “that this court issue a stay of

deportation pending judicial review of motion to reopen/reconsider final order of

deportation.” The motion clearly stated that he might file a petition for review

in this court in the future, if his motion for reconsideration before the BIA was

unsuccessful. This statement, and the motion’s multiple references to a possible

future petition for review, clearly evince Ezike’s intent not to petition for review

at that time. We cannot construe his May 18 motion as a timely petition for

review, and consequently we lack jurisdiction to review the BIA’s April 20 order.

B

Next, we turn to Ezike’s petition for review of the BIA’s order denying his

motions to reconsider and to reopen. A denial of a motion to reconsider or to

reopen is reviewed under a “highly deferential abuse of discretion standard.”

Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). A motion for

reconsideration fails if the alien does not “identify a change in the law, a

misapplication of the law, or an aspect of the case that the BIA overlooked.” Id.

at 301. Ezike did not identify any of those things, and instead merely repeated

the same arguments that he had made in his appeal to the BIA.

Ezike’s motion to reopen was based on his contention that there existed

new evidence of the non-finality of his Arkansas conviction for Internet stalking.

This argument has been rendered moot by the decision in Ezike v. State, No. CR

09-302, 2009 WL 1819514 (Ark. S. Ct. June 25, 2009) (dismissing Ezike’s appeal

of the dismissal of his petition to vacate his guilty plea). Ezike’s petition for

review of the BIA’s July 27 order therefore fails.

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III

For the reasons stated above, the petition for review of the original

removal order is DISMISSED as untimely, and the petition for review of the

denial of the motions to reconsider and to reopen is DENIED.

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