Eneugwu v. Garland

Case: 20-61162 Document: 00516563591 Page: 1 Date Filed: 12/01/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED December 1, 2022 No. 20-61162 Lyle W. Cayce Clerk Bobby Onyeka Eneugwu; Odera Obinna Eneugwu, Petitioners, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA Nos. A078 555 678; A078 555 679 Before Jones, Southwick, and Ho, Circuit Judges. Leslie H. Southwick, Circuit Judge: Two brothers from Nigeria petition this court to overturn the Board of Immigration Appeals’ refusal to allow their removal proceedings to be reopened. They argue their counsel’s ineffectiveness caused their application for asylum and other relief to be incomplete and therefore denied, and that counsel’s failures constituted extraordinary circumstances justifying reopening of their removal proceedings. We disagree and deny the petition. FACTUAL AND PROCEDURAL BACKGROUND On November 20, 1997, Bobby Onyeka Eneugwu and Odera Obinna Eneugwu, brothers who are natives of Nigeria, were admitted into the United Case: 20-61162 Document: 00516563591 Page: 2 Date Filed: 12/01/2022 No. 20-61162 States on tourist visas with permission to remain in the United States until May 19, 1998. They have remained in the United States until now without permission. In March 2009, the Department of Homeland Security (“DHS”) issued Notices to Appear (“NTA”) to the Eneugwus, charging them as removable under 8 U.S.C. § 1227(a)(1)(B) as noncitizens who re- mained in the United States for a time longer than permitted. The Eneugwus failed to appear at the Immigration Court hearing in December 2009 and, accordingly, were ordered removed in absentia. In September 2012, attorney Michael Mattson entered an appearance on behalf of the Eneugwus, filed an admission of the factual allegations set forth in each NTA, and conceded the charges of removability. In December 2012, Mattson moved to withdrew after being informed the Eneugwus would be seeking other counsel. It was not until April 2015, though, that an Immi- gration Judge (“IJ”) granted Mattson’s motion to withdraw. Thereafter, the Eneugwus proceeded pro se at IJ hearings on Decem- ber 12, 2017, and on March 21, 2018. At the March 2018 hearing, the Eneug- wus filed individual applications for asylum, withholding of removal, and pro- tection under the Convention Against Torture (“CAT”). At that hearing, the IJ provided the Eneugwus with “biometrics instructions, advised [them] of the importance of having their fingerprints taken, advised them to request a fingerprint appointment right away, detailed, in depth, the process for re- questing a fingerprint appointment, and warned [them] that the failure to have their fingerprints taken prior to the merits hearing would lead to their applications being denied.” A merits hearing was held on March 25, 2019. Attorney Patrick Chukwu entered his appearance on behalf of the Eneugwus. The IJ asked if the Eneugwus had submitted their biometrics request to the address listed in the biometrics instructions previously provided to them. The Eneugwus an- swered they had not done so because their attorney did not tell …

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