Nunes v. Attorney General of the United States
475 F. App'x 427
3rd Cir.2012Background
- Nunes petitions for review of a BIA denial of his motion to reopen; he proceeds pro se.
- Nunes is a Jamaican citizen who entered the U.S. in 1988 as a nonimmigrant student and last attended school in 2000.
- DHS issued a notice to appear in 2009 charging removability for status violations; Nunes conceded removability through counsel who later withdrew.
- The IJ denied cancellation of removal for lack of extreme hardship, granted voluntary departure; the BIA affirmed but did not reinstate voluntary departure due to an unpaid bond.
- The BIA ordered removal; Nunes later sought to reopen for adjustment of status based on a US citizen wife’s petition; the BIA denied as untimely and declined sua sponte reopening for lack of exceptional circumstances; the court denies the petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the petition for review challenges the BIA’s sua sponte reopening decision | Nunes argues BIA erred on law regarding sua sponte reopening | Government says BIA properly declined sua sponte reopening | Denied; court lacks jurisdiction over discretionary sua sponte reopening ruling |
| Whether the motion to reopen for adjustment was timely | Nunes contends timeliness should be considered | BIA held untimely under 90-day rule | Denied; motion untimely per final order |
| Whether equitable tolling applies to the 90-day deadline | Nunes seeks tolling due to pro se status and access issues | Equitable tolling not warranted by pro se status or limited access | Denied; no extraordinary impediment shown |
| Whether the BIA erred on law regarding eligibility for adjustment based on prior petition | Nunes asserts denial of earlier petition does not preclude adjustment by law | BIA cited prior petition in context of timing and status; no improper exclusion | Denied; BIA did not err in its discretionary analysis |
Key Cases Cited
- Pllumi v. Att’y Gen., 642 F.3d 155 (3d Cir. 2011) (jurisdiction to review discretionary denial of sua sponte reopening; review of legal arguments permitted)
- Cruz v. Att’y Gen., 452 F.3d 240 (3d Cir. 2006) (jurisdiction to review untimeliness ruling on motion to reopen)
- Mahmood v. Holder, 570 F.3d 466 (2d Cir. 2009) (distinguishable; agency did not err in sua sponte reopening decision)
- Miller v. New Jersey State Dep’t of Corr., 145 F.3d 616 (3d Cir. 1998) (equitable tolling generally not available for pro se inmates; extraordinary circumstances required)
- Felder v. Johnson, 204 F.3d 168 (5th Cir. 2000) (pro se status generally does not warrant equitable tolling)
- Common Cause of Pennsylvania v. Pennsylvania, 558 F.3d 249 (3d Cir. 2009) (limits on new arguments raised in reply brief)