948 F.3d 76
1st Cir.2020Background
- Mohamed Abdelrhman Daoud, a Sudanese native and former refugee who later became an LPR, was convicted of robbery in New Hampshire (Oct. 2012) and charged as removable as an aggravated felon.
- An IJ denied Daoud asylum, withholding, and CAT protection on credibility and merits grounds and ordered removal; Daoud did not appeal to the BIA and was removed to Sudan in May 2014.
- In December 2015 (from abroad), Daoud filed a motion to reopen/reconsider, asserting changed country conditions, equitable tolling (due to imprisonment in Sudan and mental illness), and claiming the IJ erred on competency and aggravated-felony treatment.
- The IJ denied the motion as untimely and for failure to show due diligence for equitable tolling; the IJ also found no prima facie entitlement to relief and declined sua sponte reopening.
- The BIA affirmed on two independent grounds: (1) the regulatory "post-departure bar" would prevent the motion; and alternatively (2) it would deny reopening in the exercise of its discretion given the passage of time and Daoud’s criminal history.
- The First Circuit reviewed only the BIA’s alternative discretionary ground and dismissed Daoud’s petition for review, holding it lacked jurisdiction under 8 U.S.C. § 1252(a)(2)(C)-(D).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether equitable tolling should excuse untimely motions | Daoud: detention in Sudan and severe mental illness prevented timely filing; he acted diligently once able | Gov/BIA: motion was untimely; Daoud failed to show due diligence; BIA considered and rejected tolling | BIA considered equitable tolling and rejected it; Court found no legal question to review and could not disturb discretionary outcome |
| Whether the post-departure bar (8 C.F.R. §1003.23(b)(1)) barred the motion | Daoud: BIA misapplied or should not apply the regulatory post-departure bar to him | Gov/BIA: post-departure bar precludes reopening after departure | Court declined to decide the regulatory-interpretation issue because doing so would be advisory given lack of jurisdiction over the alternative discretionary ground |
| Whether the BIA improperly denied reopening as an exercise of discretion | Daoud: statutory scheme or nondiscretionary nature of some relief precludes BIA denying reopening in its discretion | BIA: regulations and precedent give IJ/BIA discretion to deny motions to reopen even if prima facie case shown; Daoud failed to exhaust some arguments | Court: discretionary denial is not reviewable under §1252(a)(2)(C); Daoud did not preserve a justiciable legal question |
| Whether the court has jurisdiction to review the BIA’s alternative discretionary ruling | Daoud: frames issues as legal to avoid the jurisdictional bar | Gov: jurisdiction limited to constitutional questions or questions of law under §1252(a)(2)(D) when alien is removable for a covered crime | Held: Court lacks jurisdiction under §1252(a)(2)(C)-(D) to review the discretionary/factual denial; petition dismissed |
Key Cases Cited
- Ortega v. Holder, 736 F.3d 637 (1st Cir. 2013) (declining to issue advisory opinions when jurisdiction over an alternative ground is lacking)
- Zajanckauskas v. Holder, 611 F.3d 87 (1st Cir. 2010) (if two alternative grounds exist and one is unreviewable, courts must avoid advisory review of the other)
- Mehilli v. Gonzales, 433 F.3d 86 (1st Cir. 2005) (discretionary and factual determinations fall outside courts of appeals' jurisdiction under §1252 limits)
- Larngar v. Holder, 562 F.3d 71 (1st Cir. 2009) (distinguishing reviewable legal framing of changed-country-conditions analysis)
- Gyamfi v. Whitaker, 913 F.3d 168 (1st Cir. 2019) (equitable-tolling determinations reflect judgment calls tied to discretionary review)
- Bolieiro v. Holder, 731 F.3d 32 (1st Cir. 2013) (noting the court has not definitively decided whether equitable tolling applies to the statutory 90-day deadline)