Peter Uzodinma Abbah v. U.S. Attorney General

USCA11 Case: 21-12531 Date Filed: 08/26/2022 Page: 1 of 13 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 21-12531 Non-Argument Calendar ____________________ PETER UZODINMA ABBAH, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ____________________ Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A061-213-337 ____________________ USCA11 Case: 21-12531 Date Filed: 08/26/2022 Page: 2 of 13 2 Opinion of the Court 21-12531 Before JILL PRYOR, GRANT, and BRASHER, Circuit Judges. PER CURIAM: Peter Uzodinma Abbah seeks review of the Board of Immi- gration Appeals’ (“BIA”) order affirming the Immigration Judge’s (“IJ”) order denying his motion to reopen his removal proceedings. There are two issues on appeal. First, Abbah argues that the BIA abused its discretion in declining to sua sponte reopen his removal proceedings. Second, he contends that the BIA abused its discretion in denying his motion to reopen his removal proceedings because he was entitled to equitable tolling based on: (1) ineffective assis- tance of counsel and (2) intervening authority. After careful re- view, we dismiss the petition in part and deny it in part. I. BACKGROUND Abbah, a native and citizen of Nigeria, entered the United States as a conditional resident in 2010. In 2018, he pled guilty to aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). A district court sentenced him to 24 months’ imprisonment followed by one year of supervised release. It also ordered him to pay roughly $218,000 in restitution. Abbah was served with a Notice to Appear that charged him with being removable under 8 U.S.C. § 1227(a)(2)(A)(iii) because he was convicted of an aggravated felony, as defined in 8 U.S.C. § 1101(a)(43)(M)(i), a law relating to an offense that involved fraud or deceit in which the loss to the victims exceeded $10,000. Abbah, through previous counsel, Nicole Kozycki, conceded removability. USCA11 Case: 21-12531 Date Filed: 08/26/2022 Page: 3 of 13 21-12531 Opinion of the Court 3 In December 2018, the IJ found Abbah removable and ordered him removed to Nigeria. Abbah did not appeal this ruling to the BIA. In January 2019, Abbah began serving his custodial sentence in Philipsburg, Pennsylvania.1 In July 2020, Abbah, through successor counsel, Thomas Moseley, moved to reopen and terminate his removal proceedings. He filed a declaration2 and memorandum in support of his motion, seeking sua sponte reopening or reopening based on equitable toll- ing. First, Abbah requested that the IJ sua sponte reopen his re- moval proceedings because, applying the categorical approach and the reasoning in Martin v. United States, 949 F.3d 662 (11th Cir. 2020), his 2018 conviction for aggravated identity theft was not an aggravated felony. Second, Abbah asserted that he was entitled to equitable toll- ing based on ineffective assistance of counsel or intervening author- ity, Martin. He asserted that Kozycki rendered ineffective 1 According to the Federal Bureau of Prisons, Abbah was released in July 2020. See Federal Bureau of Prisons Inmate Locator, mateloc. 2 Abbah served the motion to …

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