USCA11 Case: 20-10991 Date Filed: 10/08/2020 Page: 1 of 10 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 20-10991 Non-Argument Calendar ________________________ Agency No. A099-377-742 DAMILOLA ADEKUNLE ADELOYE, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (October 8, 2020) Before JORDAN, LAGOA, and BRASHER, Circuit Judges. PER CURIAM: USCA11 Case: 20-10991 Date Filed: 10/08/2020 Page: 2 of 10 Damilola Adeloye seeks review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen the immigration court’s in abstentia order for his removal based on ineffective assistance of counsel. Adeloye argues that, although his motion was untimely, the BIA erred by declining to equitably toll the 180-day filing deadline due to the exceptional circumstance of ineffective assistance of counsel. Because we conclude Adeloye did not exercise due diligence in bringing this issue before the BIA, we deny Adeloye’s petition for review. I. Adeloye is a native and citizen of Nigeria who entered the United States without inspection on or around November 2000. On April 30, 2001, Adeloye’s first wife filed an I-130 petition on his behalf. The two divorced in 2002, and the United States Citizenship and Immigration Services denied that I-130 petition on January 29, 2007. The Department of Homeland Security (“DHS”) initiated removal proceedings against Adeloye on July 13, 2007, by filing a notice to appear before the immigration court in Atlanta, Georgia. In the notice to appear, DHS stated that the Immigration and Nationality Act § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), authorized Adeloye’s removal as an “alien present in the United States without being admitted or paroled” by an immigration officer. On November 15, 2007, the immigration court mailed a notice of hearing to Adeloye, scheduling his master 2 USCA11 Case: 20-10991 Date Filed: 10/08/2020 Page: 3 of 10 calendar hearing for January 29, 2008. On January 17, 2008, Adeloye’s attorney, David Goren, filed a motion to change venue from Atlanta to Baltimore, Maryland, where Adeloye resided at the time with his fiancé. In that motion, Adeloye admitted the allegations of fact in the notice to appear, conceded he was removable under Section 212(a)(6)(A)(i), and stated he was planning to marry a United States citizen. On January 22, 2008, the immigration judge denied Adeloye’s motion to change venue, stating Adeloye had submitted no proof of residence and had no prima facie ability to adjust his status. Neither Adeloye nor Goren appeared at the January 29, 2008, master calendar hearing, and the immigration judge issued an in abstentia order for Adeloye’s removal to Nigeria. Adeloye filed his first motion to reopen the in absentia order and to change venue on July 24, 2008. He alleged that he did not appear at the master calendar hearing because he did not receive notice of the immigration court’s denial of his motion to change venue in time to attend. He also stated that he had married a United States citizen ...
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