Sulaiman Oladokun v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 05-3937
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SULAIMAN OLADOKUN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA No. A78-711-270)
Immigration Judge: Daniel A. Meisner
Submitted Under Third Circuit LAR 34.1(a)
December 4, 2006
Before: RENDELL and AMBRO, Circuit Judges,
and BAYLSON*, District Judge
(Filed: December 27, 2006)
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OPINION OF THE COURT
__________
__________________
* Honorable Michael M. Baylson, Judge of the United States District Court for the
Eastern District of Pennsylvania, sitting by designation.

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RENDELL, Circuit Judge.
Petitioner Sulaiman Oladokun appeals from the July 28, 2005, ruling of the Board
of Immigration Appeals (“BIA”) denying Oladokun’s motion to reopen his immigration
proceedings. The Board held that Oladokun’s deportation in January of 2004 constituted
a “withdrawal” of Oladokun’s motion, foreclosing review of that motion. We will affirm
the ruling of the Board.
I.
Oladokun, a native of Burkina Faso and a citizen of Nigeria, arrived in the United
States in May of 1999. Oladokun was subsequently admitted to the State University of
New York, Maritime College (“SUNY Maritime”), and successfully adjusted his
immigration status to that of student. In March of 2003, Oladokun was taken into custody
by the Joint Terrorism Task Force after SUNY Maritime alleged that he had engaged in
“suspicious behavior.”
Following an investigation, the Department of Homeland Security (“DHS”)
concluded that Oladokun was uninvolved in any terrorist activity, though it did uncover
evidence suggesting that he had fraudulently obtained his student visa. DHS
subsequently issued a Notice to Appear, charging Oladokun as removable under
Immigration and Naturalization Act (“INA”) § 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A), as
an alien who had procured a visa by fraud and, under that same subsection, as an alien not
in possession of a valid visa.

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1In the immigration context, ineffective assistance of counsel claims fall under the
Fifth, rather than the Sixth, Amendment. Uspango v. Ashcroft, 289 F.3d 226, 231 (3d
Cir. 2002) (holding that “there is no Sixth Amendment right to counsel in deportation
hearings, so any claim of ineffective assistance of counsel advanced by [an alien] must be
based on the Fifth Amendment’s due process guaranty”).
3
After SUNY Maritime disenrolled Oladokun, DHS added the charge that he was
removable under INA § 237(a)(1)(C)(i), 8 U.S.C. § 1227(a)(1)(C)(i), as an alien who had
failed to maintain the conditions of his nonimmigrant status.
In a series of hearings held between April and June of 2003, an Immigration Judge
(“IJ”) found Oladokun removable under the charge related to his disenrollment, without
reaching the other grounds. The IJ also denied Oladokun’s applications for asylum,
withholding of removal and protection under the Convention Against Torture. Oladokun
timely appealed these rulings to the Board of Immigration Appeals (“BIA”), but the BIA
affirmed them without opinion on December 12, 2003.
On January 21, 2004, after retaining new counsel, Oladokun timely filed a motion
to reopen his removal proceedings on the basis of ineffective assistance of counsel,
specifically alleging that his counsel was ineffective in failing to request voluntary
departure during the proceedings before the IJ.1 As Oladokun’s brief explains, his “sole
purpose in seeking to reopen the proceedings was to be allowed to apply for voluntary
departure.”
In conjunction with this motion, Oladokun filed a motion for stay of removal
pending the resolution of his motion to reopen. On January 26, 2004, the BIA denied

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28 C.F.R. § 1003.2(d) reads: “Departure, deportation, or removal. A motion to reopen
or a motion to reconsider shall not be made by or on behalf of a person who is the subject
of exclusion, deportation, or removal proceedings subsequent to his or her departure from
the United States. Any departure from the United States, including deportation or
removal of a person who is the subject of exclusion, deportation, or removal proceedings,
occurring after the filing of a motion to reopen or a motion to reconsider, shall constitute
a withdrawal of such motion.”
3According to Oladokun’s brief, it “was only after the filing of the Petition, upon
receiving and reviewing the administrative record in the matter, that counsel learned that
a decision on the January 2004 Motion had issued on March 11, 2004.” The record seems
to support this contention.
4
Oladokun’s motion for stay of removal, finding “little likelihood that the motion [to
reopen would] be granted.” Oladokun was deported three days later, on January 29,
2004.
On March 11, 2004, the BIA issued a ruling dismissing Oladokun’s underlying
motion, finding that Oladokun’s departure from the United States resulted in a withdrawal
of the motion under 8 C.F.R. § 1003.2(d). 2 It is apparent, however, that neither Oladokun
nor his counsel received notice of this ruling. Although a copy of the document is part of
the administrative record, it does not indicate if, or to whom, it was ever sent.3 Without
knowledge of the ruling, Oladokun’s counsel wrote to the BIA on March 30, 2005,
requesting a decision on the motion to reopen. The BIA responded on April 5, 2005,
informing counsel, in one sentence, that Oladokun’s motion had been “withdrawn,”
without citation to the aforementioned regulation.
Apparently failing to understand the relationship between the BIA’s response and
the language of 8 C.F.R. § 1003.2(d), on June 8, 2005, Oladokun filed a second motion

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to reopen, arguing that he had not withdrawn his previous motion, requesting a ruling on
that motion and reiterating the ineffective assistance of counsel claim. The BIA denied
this motion on July 28, 2005, this time explicitly indicating that, under 8 C.F.R.
§ 1003.2(d), Oladokun’s departure constituted a “withdrawal” of the motion and was
therefore nonreviewable.
Oladokun timely filed a petition for review with this Court on August 22, 2005.
We have jurisdiction to review the BIA’s ruling under 28 U.S.C. § 1252(b). We review
the BIA’s decision that it lacked jurisdiction to consider an alien’s motion to reopen
because the alien has departed from the United States for an abuse of discretion. Bejar v.
Ashcroft, 324 F.3d 127, 130 (3d Cir. 2003).
II.
Oladokun argues that the BIA should not be able to rely on the fact of his
deportation for purposes of 8 C.F.R. § 1003.2(d) when he alleges that the deportation
came about as a result of a due process violation, namely the ineffective assistance of his
counsel in failing to allow Oladokun to request voluntary departure. Oladokun finds
support for this argument in our ruling in Marrero v. INS, 990 F.2d 772 (3d Cir. 1993),
where we held that we had jurisdiction to hear the appeal of a deported immigrant
because the appeal raised a “colorable claim” that the immigrant was denied due process
in his removal proceedings. Although Marrero dealt with a statutory provision governing
federal court jurisdiction distinct from the regulation at issue here, Oladokun suggests that
the line of cases from which we adopted this rule, Mendez v. INS, 563 F.2d 956 (9th Cir.

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4Additionally, we would note that Oladokun’s second motion to reopen would appear
to be both temporally and numerically barred under INA §§ 240(c)(6)(A) & (C), 8 U.S.C.
6
1977) and Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990), explicitly dictates that, in
the motion to reopen context, the BIA may not refuse jurisdiction under 8 C.F.R.
§ 1003.2(d) when the deported immigrant advances a due process challenge.
Even if we were to adopt this reasoning, Oladokun would still have to show that
his ineffective assistance of counsel claim is a “colorable” one. Unfortunately for
Oladokun, he cannot make such a showing. In his brief before us and in both of his
motions to reopen, Oladokun clearly alleges that his counsel was ineffective in failing to
request voluntary departure. However, “voluntary departure is a discretionary form of
relief,” Dinnall v. Gonzales, 421 F.3d 247, 260 (3d Cir. 2005), and we have clearly held
that “because discretionary relief is necessarily a matter of grace than of right, aliens do
not have a due process liberty interest in consideration for such relief.” United States v.
Torres, 383 F.3d 92, 104 (3d Cir. 2004). “It is axiomatic that a cognizable liberty or
property interest must exist in the first instance for a procedural due process claim to lie.”
Mudric v. Attorney General, 469 F.3d 94, 98 (3d Cir. 2005). Without such an interest at
stake, Oladokun simply had no process due to him and could not have suffered a
constitutional due process violation as a result of his counsel’s alleged ineffective
assistance. Therefore, although Oladokun’s claim of ineffective assistance may have
some factual basis, it clearly has no legal basis and, consequently, cannot be deemed
“colorable” such that it would compel the BIA to consider Oladokun’s motion to reopen.4

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§§ 1229a(c)(6)(A) & (C), as well as 8 C.F.R. § 1003.2(c)(2). However, because the BIA
did not rely on these provisions in dismissing Oladokun’s second motion to reopen, we
need not do so here.
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III.
For these reasons, we will deny Oladokun’s petition for review.

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