814 F.3d 565
1st Cir.2016Background
- Sohiel Omar, a Pakistani national and lawful permanent resident, was charged as removable based on 1994 convictions and denied § 212(c) relief at an IJ hearing in 2002 because the IJ concluded IIRIRA barred relief for convictions after trial.
- The BIA affirmed the IJ per curiam in January 2003; Omar was removed to Ireland in February 2003 and filed a timely first motion to reconsider, which the BIA denied on the merits in March 2003.
- More than a decade later (August 2014), Omar filed a second motion to reconsider, relying on the BIA’s subsequent decision in Matter of Abdelghany adopting a rule that § 212(c) relief can be available for convictions after trial.
- The BIA denied the second motion as time- and number-barred under 8 U.S.C. § 1229a(c)(5)(B) and declined to equitably toll the limits, holding that an intervening change in law after the filing deadline is not an extraordinary circumstance.
- Omar petitioned for review; the First Circuit reviewed for abuse of discretion (assuming equitable tolling is available) and denied the petition, finding no abuse in the BIA’s refusal to excuse the procedural bars.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether equitable tolling (or an equitable exception) allows a second motion to reconsider filed >10 years late | Omar: change in law (Abdelghany adopting post-trial § 212(c) relief), summary denials, and removal (departure bar) make the case extraordinary | Govt: time and number limits apply; intervening change in law after deadlines does not justify tolling; prior motion was decided on merits | Denied — BIA did not abuse discretion; change in law years later not extraordinary to equitably toll bars |
| Whether the BIA’s summary affirmance and summary denial deprived Omar of meaningful review | Omar: summary rulings prevented full consideration and justify reconsideration | Govt: BIA may use affirmance-without-opinion; prior summary dispositions are permissible | Rejected — summary procedures are lawful and not extraordinary |
| Whether departure bar rendered Omar’s first motion ineffective for number-bar purposes | Omar: removal triggered departure bar, so the 2003 motion should not count toward the numerical limit | Govt: record shows the 2003 motion was denied on merits; Omar did not raise departure-bar argument below | Not reached on merits — argument forfeited for failure to raise before BIA; exhaustion doctrine bars review |
| Whether BIA’s decision to deny reconsideration sua sponte is reviewable | Omar: BIA should have reconsidered in light of Abdelghany | Govt: sua sponte reconsideration is discretionary and not reviewable | Denied — discretionary refusal to act sua sponte is not subject to jurisdictional review |
Key Cases Cited
- I.N.S. v. St. Cyr, 533 U.S. 289 (2001) (retroactivity and § 212(c) relief question)
- Neves v. Holder, 613 F.3d 30 (1st Cir. 2010) (equitable tolling standard for immigration deadlines)
- Bolieiro v. Holder, 731 F.3d 32 (1st Cir. 2013) (standard for abuse of discretion review of BIA denials)
- Mata v. Lynch, 135 S. Ct. 2150 (2015) (procedural note cited regarding motions to reconsider/reopen)
- Albathani v. I.N.S., 318 F.3d 365 (1st Cir. 2003) (BIA affirmance-without-opinion procedure upheld)
- Silva v. Gonzales, 463 F.3d 68 (1st Cir. 2006) (exhaustion of administrative remedies doctrine)
- Holland v. Florida, 560 U.S. 631 (2010) (equitable tolling standard in habeas context)
- Muyubisnay-Cungachi v. Holder, 734 F.3d 66 (1st Cir. 2013) (finality disfavors reopening/reconsideration)
- Whiteside v. United States, 775 F.3d 180 (4th Cir. 2014) (finality and equitable tolling in habeas context)