* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

August 28, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-60108

c/w No. 06-60402

Summary Calendar

MICHAEL ARIWODO,

Petitioner,

versus

ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

Respondent.

--------------------

Petitions for Review of an Order of the

Board of Immigration Appeals

BIA No. A29 400 627

--------------------

Before KING, DAVIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Michael Ariwodo, a native and citizen of Nigeria, entered

the United States on a student visa in 1985 and remained beyond

its expiration. He has five children, including three daughters

more than 18 years old and two sons.

PROCEDURAL BACKGROUND

Ariwodo was charged by the Immigration and Naturalization

Service (INS) with removability in 1997. At his hearing before

the immigration judge (IJ) on July 17, 1998, Ariwodo conceded
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that he was removable but sought cancellation of removal under

8 U.S.C. § 1229b(b)(1). Ariwodo did not seek asylum or

Convention Against Torture (CAT) protection at that time.

The IJ found Ariwodo removable but granted his request for

cancellation of removal under § 1229b(b)(1), reasoning that if

he were removed Ariwodo might take his then-minor daughters with

him to Nigeria where they might be subjected to female genital

mutilation (FGM). INS appealed, and on July 12, 2002, the Board

of Immigration Appeals (BIA) sided with the INS, vacating the

order of the IJ, and ordering Ariwodo removed to Nigeria. The

BIA reasoned that the possible hardship to Ariwodo’s daughters

was speculative given that their mother had full permanent

custody of the girls and that Ariwodo stated that he would not

take his daughters to Nigeria. 

Ariwodo petitioned this court, through counsel, for review

of the BIA’s decision, but the case was dismissed for want of

prosecution. Ariwodo remained in the United States beyond his

BIA-ordered date of voluntary departure, was arrested by the

Department of Homeland Security (DHS), and has remained in DHS

custody.

On May 18, 2004, Ariwodo moved the BIA to reopen his case

based on the immigrant visa that recently became available to him

in virtue of his wife’s naturalization. On July 8, 2004, the BIA

denied the motion to reopen as untimely. On August 30, 2004,

Ariwodo filed a motion with the BIA urging it to reconsider its
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July 8, 2004 denial of his motion to reopen. The BIA rejected

this filing as untimely as well on September 12, 2004.

Ariwodo also filed two more petitions for review with this

court in 2004, both of which were dismissed. On September 8,

2005, Ariwodo filed another motion to reopen with the BIA, but on

January 23, 2006, the BIA denied the motion. Meanwhile, Ariwodo

filed a 28 U.S.C. § 2241 habeas petition in federal district

court, but the court denied his request for relief. 

Two petitions for review of BIA decisions regarding Ariwodo

are consolidated here. Ariwodo timely filed one petition for

review with this court under docket No. 06-60108 as a challenge

the BIA’s January 23, 2006 denial of his motion to reopen filed

on September 8, 2005. The other petition for review, now under

docket No. 06-60402, was originally filed in this court under

docket No. 05-20928 as a timely appeal from the district court’s

denial of Ariwodo’s § 2241 habeas petition. Because the Real ID

Act “divest[ed] the district courts of jurisdiction over the

habeas petitions of aliens” challenging their orders of removal,

Andrade v. Gonzales, 459 F.3d 538, 542 (5th Cir. 2006), cert.

denied, 127 S. Ct. 973 (2007), this court partially converted

Ariwodo’s appealed § 2241 habeas petition into a petition for

review. Ariwodo then filed a consolidated brief that

incorporated his arguments raised in his § 2241 habeas petition

and brief.
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DISCUSSION

Ariwodo’s petitions raised objections to the BIA’s July 12,

2002 reversal of the IJ’s grant of the discretionary cancellation

of removal under 8 U.S.C. § 1229b(b). The Government correctly

argues that this court lacks jurisdiction to review the BIA’s

denial of such discretionary relief. Congress has specifically

insulated decisions regarding the granting of relief under

§ 1229b from judicial review, 8 U.S.C. § 1252(a)(2)(B)(i), and

this court has interpreted this jurisdiction-stripping statute to

extend to BIA refusals to repoen based on the same grounds. 

Rodriguez v. Ashcroft, 253 F.3d 797, 799-800 (5th Cir. 2001). 

However, this court generally has jurisdiction to review the

BIA’s determination that Ariwodo is statutorily ineligible for

such relief. § 1252(a)(2)(D).

Ariwodo claims that the treatment of his visa petition and

application for adjustment of status by the United States Customs

and Immigration Services (USCIS) and the BIA violated his rights. 

Because this court lacks jurisdiction over the USCIS’s handling

of I-130 visa petitions, Conti v. INS, 780 F.2d 698, 702 (7th

Cir. 1985)), and over the discretionary denial of adjustment of

status, § 1252(a)(2)(B)(i); Hadwani v. Gonzales, 445 F.3d 798,

800 (5th Cir. 2006), this court cannot entertain these claims. 

See also Rodriguez, 253 F.3d at 799-800.

Ariwodo’s now-converted habeas petition challenged both the

July 8, 2004 denial of his motion to reopen filed on May 18,
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2004, and the September 17, 2004 denial of his motion to

reconsider filed on August 30, 2004. This court does not have

jurisdiction to entertain Ariwodo’s claims that the INA was

violated and that the BIA was wrong to reverse the IJ’s

cancellation of removal to the extent that these claims

challenge the BIA’s denial of § 1229b discretionary relief. 

§ 1252(a)(2)(B)(i). With respect to his claim that the INA was

violated, Ariwodo has not identified any provision of the INA

that the BIA violated in denying his motions to reopen and

reconsider. 

Ariwodo’s allegations that his due process rights were

violated when the BIA denied his May 18, 2004 motion to reopen

and his August 30, 2004 motion to reconsider are without merit

because he had no constitutionally protected liberty interest

in the having his case reopened or reconsidered. See INS v.

Doherty, 502 U.S. 314, 323 (1992); Altamirano-Lopez v. Gonzales,

435 F.3d 547, 551 (5th Cir. 2006); 8 C.F.R. § 1003.2(b). 

Moreover, Ariwodo had no liberty interest in the underlying

relief sought in Ariwodo’s motions to reopen and reconsider --

adjustment of status and cancellation of removal based on extreme

hardship, respectively. Gutierrez-Morales v. Homan, 461 F.3d

605, 609 (5th Cir. 2006); Ahmed v. Gonzales, 447 F.3d 443, 440

(5th Cir. 2006); § 1229b(b)(1)(D). 

Ariwodo’s claim that the denial of his May 18, 2004 motion

to reopen and his August 30, 2004 motion to reconsider violated
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the Administrative Procedure Act (APA) is meritless because the

APA does not apply to the BIA. Ho Chong Tsao v. INS, 538 F.2d

667, 669 (5th Cir. 1976); see also Marcello v. Bonds, 349 U.S.

302, 310 (1955).

Ariwodo’s claims that the BIA abused its discretion in

denying his May 18, 2004 motion to reopen and his August 30, 2004

motion to reconsider are meritless. Because Ariwodo submitted

his May 18, 2004 motion to reopen after the 90-day deadline and

because the exceptions found in § 1003.2(c)(3) to the time and

number limitations do not apply in his case, the BIA did not

abuse its discretion by denying Ariwodo’s motion to reopen as

time-barred. § 1003.2(c)(2); see Singh v. Gonzales, 436 F.3d

484, 487 (5th Cir. 2006). There is no exception to the 30-day

time limit for filing motions to reconsider. See § 1003.2(b)(2). 

Ariwodo’s motion to reconsider was filed on September 17, 

2004 -- more than 30 days after it was due. His claim that the

BIA abused its discretion in denying his motion to reconsider is

therefore also without merit.

Ariwodo’s ineffective assistance claim in his now-converted

habeas petition relates to the dismissal of his appeal from the

BIA’s reversal of the IJ’s grant of cancellation of removal under

§ 1229b and the failure of his attorney to reopen his case. 

Because cancellation of removal and the grant of a motion to

reopen are both forms of discretionary relief, § 1229b; 
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Altamirano-Lopez, 435 F.3d at 551, Ariwodo cannot establish a due

process claim for ineffective assistance of counsel in pursuing

that relief. Gutierrez-Morales, 461 F.3d at 609.

Ariwodo’s claim that the IJ violated his due process rights

by failing to advise him of the possibility that he could be

entitled to asylum or protection under the Convention Against

Torture (CAT) based on the prospect of his daughters being

subjected to FGM upon his removal to Nigeria is dismissed as moot

because each of his three daughters is now more than 18 years old

and no longer subject to being removed with Ariwodo. See SEC v.

Med. Comm. for Human Rights, 404 U.S. 403, 405-07 (1972); Bailey

v. Southerland, 821 F.2d 277, 279 (5th Cir. 1987). 

Ariwodo argues that his September 8, 2005 motion to reopen

was not untimely under § 1003.2(c)(2) because he did not receive

notice of the BIA’s July 12, 2002 order until late October 2002. 

However, Ariwodo’s motion to reopen was filed nearly three years

after he claims to have received notice of the BIA’s decision --

well beyond the 90-day deadline even if equitable tolling applied

until he received actual notice. In fact, Ariwodo’s first motion

to reopen was also filed on May 18, 2004 -- also beyond the 90-

day deadline even assuming it were tolled. Therefore, the BIA

did not abuse its discretion in denying the September 8, 2005

motion to reopen. See Panova-Bohannan v. Gonzales, 157 F. App’x

706, 708-09 (5th Cir. 2005).
No. 06-60108

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Ariwodo also claims that the time and number limitations on

motions to reopen do not apply in his case because of the

exceptions found in § 1003.2(c)(3). Ariwodo’s case does not fall

within these exceptions. Ariwodo’s removal was not ordered in

absentia, see § 1003.2(c)(3)(i), and the September 8, 2005 motion

to reopen was not “based on changed circumstances arising in the

country of nationality or in the country to which deportation has

been ordered.” § 1003.2(c)(3)(ii). Moreover, the evidence

regarding FGM that Ariwodo presented with his motion to reopen

was available at the time of his removal hearing before the IJ. 

See § 1003.2(c)(3)(ii) (requiring that evidence be material and

previously unavailable).

Ariwodo claims that his attorney’s ineffective assistance

during his petition for review before this court tolled the 90-

day deadline for him to file his motion to reopen. This court

has acknowledged a circuit split “as to equitable tolling of

statutory deadlines for ineffective assitance of counsel in

immigration cases.” Panova-Bohannan, 157 F. App’x at 707 n.6. 

Even if equitable tolling did apply, Ariwodo’s September 8, 2005

motion to reopen would still have been filed late -- much more

than 90 days after the October 30, 2003 dismissal of that appeal

for want of prosecution. See Ariwodo v. Ashcroft, No. 02-60996,

slip op. (5th Cir. Oct. 30, 2003). Accordingly, the BIA did not

abuse its discretion in rejecting his motion to reopen as

untimely. Panova-Bohannan, 157 F. App’x at 708-09. 
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Neither did the BIA err in refusing to address on the merits

some of Ariwodo’s other claims in his September 8, 2005 motion to

reopen because those claims were procedurally barred. See

§ 1003.2(c)(3).

In addition, this court need not address the BIA’s finding

that Ariwodo was statutorily ineligible for adjustment of status

or that he was not entitled to withholding of removal, asylum,

and CAT protection, because these claims that the BIA did address

on the merits are also procedurally barred. 

Ariwodo claims that the BIA exceeded its authority by

ordering his removal, but the BIA’s removal order was predicated

on its reversal of the IJ’s decision to grant Ariwodo the

discretionary relief of cancellation of removal and gave effect

to the IJ’s order that Ariwodo was removable. “Such disposition

does not offend the scope of the powers granted to the BIA by

either Congress or the Attorney General.” Delgado-Renua v.

Gonzales, 450 F.3d 596, 601 (5th Cir. 2006) (internal quotation

marks and citation omitted).

Ariwodo’s motion for injunctive relief to prevent the

Government from continuing to detain him without bond pursuant to

8 U.S.C. § 1226(c) is misplaced and will be denied. The BIA’s

entry of a final removal order against him shifted the Attorney

General’s authority to detain him to 8 U.S.C. § 1231.

Because the Government received an extension of time to file

its brief through October 3, 2006, and mailed its brief on that
No. 06-60108

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day, Ariwodo’s motion to strike the Government’s brief as

untimely is denied. See FED. R. APP. P. 25(a)(2)(B)(i).

CONSOLIDATED PETITIONS FOR REVIEW DISMISSED IN PART AS MOOT

AND DENIED IN PART; MOTION FOR INJUNCTIVE RELIEF DENIED; MOTION

TO STRIKE DENIED.