IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-60658

JULIANA ADENIKE OGUNFUYE, 

 Petitioner

v.

WILLIAM P. BARR, U. S. ATTORNEY GENERAL, 

 Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A036-939-629

Before STEWART, Chief Judge, SOUTHWICK and ENGELHARDT, Circuit 

Judges.

PER CURIAM:*

Juliana Adenike Ogunfuye petitions for review of the Board of 

Immigration Appeals’ denial of her motion to reopen. We conclude that we lack 

jurisdiction to consider the issues raised and DISMISS her petition. 

 

* 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

April 11, 2019

Lyle W. Cayce

Clerk

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FACTUAL AND PROCEDURAL BACKGROUND

The petitioner, Juliana Adenike Ogunfuye, is a Nigerian citizen who was 

admitted to the United States in 1980. In 1990, she was convicted in Texas 

state court for theft and forgery. In 2007, an immigration judge entered an 

order of removal and dismissed Ogunfuye’s applications for relief as abandoned

after she failed to submit biometric information. Ogunfuye v. Holder, 610 F.3d 

303, 304-05 (5th Cir. 2010). The Board of Immigration Appeals (“BIA”) upheld 

that order in 2009, we denied her petition for review of the BIA order in 2010, 

and Ogunfuye was deported to Nigeria shortly thereafter. Id.

In December 2016, Ogunfuye moved to reopen her removal proceedings

at the BIA based on the alleged ineffectiveness of her prior counsel. See Matter 

of Lozada, 19 I. & N. Dec. 637, 638 (BIA 1988) (recognizing ineffective 

assistance claims). The motion alleged that she had been eligible for relief 

from removal based on the BIA’s decision in Matter of Abdelghany, 26 I. & N. 

Dec. 254 (BIA 2014), but that her counsel’s mistaken belief to the contrary and 

her counsel’s failure to make a timely submission of biometric information

prevented Ogunfuye from applying for that relief. 

The BIA denied the motion as untimely. Ogunfuye petitioned this court 

for review of that denial. 

DISCUSSION

Since Ogunfuye’s motion to reopen was filed nearly eight years after the 

BIA entered a final order of removal, a threshold question is whether she is 

entitled to equitable tolling of the 90-day statute of limitations. 8 U.S.C. 

§ 1229a(c)(7)(C)(i); Lugo-Resendez v. Lynch, 831 F.3d 337, 343-44 (5th Cir. 

2016). She must establish both that she pursued her rights with “reasonable 

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diligence” and that an “extraordinary circumstance” beyond her control 

prevented compliance. Lugo-Resendez, 831 F.3d at 344. 

In denying her motion as untimely, the BIA concluded that equitable 

tolling was not warranted because she had “not established that she [had] been 

pursuing her rights diligently . . . and that some circumstance beyond her 

control prevented her from filing . . . within the statutory time limit.” 

Ogunfuye disputes these findings, but they are factual findings to which 

“the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(C) applies” if her Texas theft 

conviction qualifies as an aggravated felony.1 Penalva v. Sessions, 884 F.3d 

521, 526 (5th Cir. 2018). If the bar applies, then we lack jurisdiction to consider 

Ogunfuye’s challenge to the BIA’s finding that she was not entitled to equitable 

tolling. Id. 

To determine whether Ogunfuye’s theft conviction constitutes an 

aggravated felony, we look no further than our prior 2010 decision concerning

Ogunfuye’s final order of removal. Ogunfuye, 610 F.3d at 307. There, 

Ogunfuye argued, among other things, that the immigration judge abused its 

discretion by denying a continuance. Id. The government, in turn, argued that 

the jurisdictional bar in Section 1252(a)(2)(C) precluded review because 

Ogunfuye was an aggravated felon. In her reply, Ogunfuye did not dispute 

that she was an aggravated felon but instead argued that the issue presented 

a question of law not subject to the jurisdictional bar. We ultimately held that

“[a]s an aggravated felon, Ogunfuye is subject to § 1252(a)(2)(C)” and therefore 

this “court ha[d] no jurisdiction to reach her” arguments because they did “not 

present a constitutional claim or issue of law.” Id. 

 

1 Relevant here, aggravated felonies are defined to include “a theft offense (including 

receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least 

one year.” 8 U.S.C. § 1101(a)(43)(G); 8 U.S.C. § 1227(a)(2)(A)(iii). 

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We accept this prior holding as the law of the case. Our law of the case 

doctrine “generally precludes reexamination of issues of law or fact decided on 

appeal.” USPPS, Ltd. v. Avery Dennison Corp., 647 F.3d 274, 282 (5th Cir. 

2011) (internal quotation marks and citation omitted). We see no compelling 

reason not to apply the prior panel’s determination here.2 Since this settles

that Ogunfuye’s conviction raises the jurisdictional bar of Section 

1252(a)(2)(C), we do not address her arguments to the contrary.

Ogunfuye also contends that that the BIA applied the incorrect rule for 

equitable tolling by ignoring our decision in Gonzalez-Cantu v. Sessions, 866 

F.3d 302 (5th Cir. 2017). Whether the BIA applied the correct standard is a 

question of law not subject to the Section 1252(a)(2)(C) jurisdictional bar. Cf.

Diaz v. Sessions, 894 F.3d 222, 226 (5th Cir. 2018). 

This issue is, however, still subject to the jurisdictional requirement that 

“the alien has exhausted all administrative remedies available to the alien as 

of right.” 8 U.S.C. § 1252(d)(1). “This exhaustion requirement applies to all 

issues for which . . . (1) the petitioner could have argued the claim before the 

BIA, and (2) the BIA has adequate mechanisms to address and remedy such a 

claim.” Omari v. Holder, 562 F.3d 314, 318-19 (5th Cir. 2009). When “the 

BIA’s decision itself results in a new issue and the BIA has an available and 

 

2 Such a reason might have existed if the prior panel’s decision was clearly erroneous 

and would work a manifest injustice. Free v. Abbott Labs., Inc., 164 F.3d 270, 272 (5th Cir. 

1999). But we find neither of these factors at play here. First, while Ogunfuye presents a 

credible argument that her Texas theft conviction may not constitute an aggravated felony, 

the panel’s holding is not clearly erroneous given United States v. Rodriguez-Salazar, 768 

F.3d 437 (5th Cir. 2014). Second, accepting the panel’s determination will not create a 

manifest injustice. We evaluate the BIA’s decision that Ogunfuye does not warrant equitable 

tolling using the “highly deferential abuse-of-discretion standard” –– a standard that 

Ogunfuye’s merits arguments do not overcome. Lugo-Resendez, 831 F.3d at 340 (internal 

quotation marks and citation omitted); see also Penalva v. Sessions, 884 F.3d 521, 526 n.3 

(5th Cir. 2018).

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adequate means for addressing that issue, a party must first bring it to the 

BIA’s attention through a motion for reconsideration.” Id. at 320. 

This reasoning is applicable here. Ogunfuye challenges the legal 

standard the BIA applied in its denial of her motion to reopen. Since she did 

not first file a motion for reconsideration before the BIA, however, the issue is 

unexhausted and we lack jurisdiction to review it. 

The petition is DISMISSED for lack of jurisdiction.

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