Alberic Israel v. U.S. Attorney General
19-14291
| 11th Cir. | Jul 6, 2021Background:
- Alberic Israel, a Haitian lawful permanent resident admitted in 1990, was convicted in 2007 of aggravated battery with a deadly weapon (Fla. Stat. § 784.045) and sentenced to 20 years.
- DHS charged removability under 8 U.S.C. § 1227(a)(2)(A)(iii) (aggravated felony as a crime of violence under 18 U.S.C. § 16) and § 1227(a)(2)(C) (firearms conviction after admission).
- The IJ found Israel removable and denied asylum, withholding, and CAT relief; the BIA (Apr. 26, 2018) affirmed removability on the firearms ground but, in light of Sessions v. Dimaya, did not affirm removability based on § 16(b).
- Israel filed a pro se March 2019 belated appeal/motion to reconsider arguing his aggravated-battery conviction is not a § 16 crime of violence post-Dimaya and attached several prison-stamped documents he says show earlier filings.
- The BIA denied the motion to reconsider as untimely and without merit, noting no record of an earlier timely filing and that the BIA had not relied on § 16(b) to find removability.
- The Eleventh Circuit held it lacked jurisdiction to review the April 2018 final order (no timely petition for review) and reviewed only the BIA’s denial of reconsideration, dismissing the petition in part and denying it in part.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review BIA’s Apr. 26, 2018 final order of removal | Israel contends he raises a colorable constitutional claim under Dimaya, so the Court has jurisdiction | Government says Israel failed to file a timely petition for review within 30 days, so court lacks jurisdiction over the final order | Dismissed in part: Court lacks jurisdiction over the April 2018 final order because no timely petition for review was filed |
| Whether BIA abused discretion in denying motion to reconsider | Israel argues he filed a timely motion (May 2018) and that Dimaya changes the legal landscape warranting reconsideration | BIA/Govt contend the record shows no timely filing, motion was untimely, and meritless because the BIA did not rely on §16(b) for removability | Denied: Court finds no abuse of discretion in BIA’s denial of reconsideration |
| Whether a colorable Dimaya claim preserves jurisdiction over constitutional/legal questions | Israel asserts Dimaya raises a constitutional question sufficient to preserve review | Government notes §1252 jurisdiction limits but acknowledges constitutional/questions of law exception; Israel did not raise errors in the BIA’s reconsideration denial | Court notes jurisdictional exception exists but Israel failed to properly frame or preserve such a claim in relation to the motion denial; issues arguably abandoned |
| Procedural-abandonment/pro‑se pleading effect | Israel relies on pro se filings and attached exhibits to show timely filings and preserved issues | Government relies on BIA records and statutory deadlines; argues briefs focus on merits of initial removal, not on BIA’s motion-denial errors | Court treats many arguments as abandoned or inadequately presented by Israel and enforces timeliness/jurisdictional rules |
Key Cases Cited
- Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (held 18 U.S.C. § 16(b) residual clause unconstitutionally vague)
- Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247 (11th Cir. 2006) (review of jurisdiction is de novo)
- Calle v. U.S. Att’y Gen., 504 F.3d 1324 (11th Cir. 2007) (standard of review for BIA denial of motion to reconsider is abuse of discretion)
- Jiang v. U.S. Att’y Gen., 568 F.3d 1252 (11th Cir. 2009) (review limited to whether BIA acted arbitrarily or capriciously)
- Dakane v. U.S. Att’y Gen., 399 F.3d 1269 (11th Cir. 2005) (30-day statutory limit to file petition for review is mandatory and jurisdictional)
- Moore v. Ashcroft, 251 F.3d 919 (11th Cir. 2001) (enumerated criminal-offense removability and §1252 jurisdiction-stripping principles)
- Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226 (11th Cir. 2005) (issues not argued on appeal are deemed abandoned)
- Timson v. Sampson, 518 F.3d 870 (11th Cir. 2008) (pro se briefs read liberally but unbriefed issues are abandoned)