MOHAMED ABDELRHMAN DAOUD, Petitioner, v. WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent.
No. 19-1283
United States Court of Appeals For the First Circuit
January 28, 2020
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before Howard, Chief Judge, Lynch and Kayatta, Circuit Judges.
Aimee Leah Mayer-Salins, with whom Fragomen, Del Rey, Bernsen & Loewy, LLP and Catholic Legal Immigration Network, Inc., were on brief, for petitioner.
Trina Realmuto, Kristin Macleod-Ball, Emma Winger, and Philip L. Torrey on brief for the American Immigration Council and the Harvard Immigration and Refugee Clinical Program, amici curiae.
Elizabeth Fitzgerald-Sambou, with whom Andrew B. Insenga, Trial Attorney, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Joseph H. Hunt, Assistant Attorney General, Civil Division, and Kiley Kane, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.
The petition argues that the BIA erred in three respects: (1) it failed to consider Daoud‘s argument that the filing deadline for his motion to reopen and to reconsider should be equitably tolled due to his mental illness and post-removal imprisonment in Sudan; (2) it impermissibly applied a regulation known as the “post-departure bar,”1
We do not reach the difficult issue about whether the BIA is correct in its interpretation under the relevant statutes of the scope of the regulatory post-departure bar,
And our review of that discretionary holding leads us to dismiss the petition on the basis that our jurisdiction is limited to issues of law and constitutional issues by
I.
A. Original Removal Proceedings
Daoud was admitted to the United States on June 10, 2001 as a refugee from Sudan. On December 14, 2005, he became a lawful permanent resident. In October 2012, Daoud was convicted of robbery,
In October 2013, the Department of Homeland Security (DHS) brought removal proceedings against Daoud by serving him with a Notice to Appear, charging that he was removable pursuant to
In November 2013, Daoud appeared pro se before the immigration court and requested relief from removal in the forms of asylum, withholding of removal, and protection under the Convention Against Torture (CAT). He testified in support of his applications. On December 12, 2013, the Immigration Judge (IJ) issued an oral decision denying Daoud‘s applications for relief and ordering him removed to Sudan. The IJ‘s later written decision, on later motions to reopen and reconsider, is described below.
As to that original denial of relief, the IJ first addressed Daoud‘s competency. Daoud had argued that he suffered from several mental illnesses but the IJ concluded that Daoud was competent.3 The IJ noted that Daoud stated he understood the
The IJ did not make an adverse credibility finding but expressed “serious doubts” about Daoud‘s credibility because of major inconsistencies between his in-court testimony, and his refugee documents and I-589 application. The IJ explained that these doubts were not overcome with reasonably available corroborating evidence because Daoud had failed to produce any affidavits or testimony from his family, who lived nearby in New Hampshire.
Turning to Daoud‘s applications for relief, the IJ first held that Daoud‘s aggravated felony conviction barred his asylum application. The IJ next denied Daoud‘s request for withholding of removal, concluding that Daoud had not met his burden of proving that he had not been convicted of a “particularly serious crime,” and this barred withholding of removal relief.
As to protection under the CAT, the IJ concluded that Daoud had not met his burden of proving he would be subjected “to torture by, or at the instigation of, or with the consent or acquiescence of a public official.” The IJ stated that even putting aside concerns about credibility, there was no evidence that if Daoud were returned to Sudan, he would be “taken into custody and subjected to torture or killed, as he fears.” On December 12, 2013, the IJ, finding Daoud removable as charged, ordered him removed to Sudan. Daoud did not take an appeal to the BIA. Daoud was removed to Sudan in May 2014, after the expiration of the statutory time limits to file a timely motion to reopen or to reconsider.
B. Motion to Reopen and to Reconsider
On December 8, 2015, some eighteen months after removal, Daoud, then apparently in Egypt and represented by counsel, filed a motion to reopen removal proceedings as to his three requеsts for relief based on purported changed country conditions in Sudan. Daoud also characterized his motion as a motion to reconsider the IJ‘s conclusions that his robbery conviction constituted an aggravated felony and that he was competent during his removal proceedings, from which he had not earlier taken an appeal to the BIA.
Because his motion was outside the ninety-day deadline for motions to rеopen and the thirty-day deadline for motions to reconsider, Daoud offered two arguments: (1) the two deadlines should be equitably tolled; and (2) his motion to reopen fell within the exception to the deadline for changed country conditions. See
In support of his equitable tolling argument, Daoud argued that he faced two extraordinary circumstances that prevented him from filing either on time. He argued that upon his removal to Sudаn some 140 days after the IJ‘s decision, he was imprisoned in Sudan, and he suffered from severe mental illness. He simply asserted that he acted with due diligence in pursuing his motion by seeking assistance in filing his motion “[w]ithin weeks” of his arrival in Egypt after his escape from Sudan.
As to changed country conditions, Daoud introduced some evidence that he had been imprisoned and tortured by Sudanese officials. He argued that this evidence was material and previously unavailable, satisfying the statutory changed country conditions exception to the ninety-day filing deadline.
On February 9, 2016, the IJ issued a written decision denying Daoud‘s motion. The IJ concluded that she did not need to reach the post-departure bar issue because
The IJ declined to equitably toll the filing deadline for Daoud‘s motion to reopen because Daoud had not shown he exercised due diligence. The IJ noted that even assuming Daoud could not have filed his motion while detained in Sudan, Daoud had (1) provided no evidence of how much time had elapsed between his escape from Sudanese prison, his arrival in Egypt, and his filing of the motion to reopen, and (2) he had not described in his own declaration any of the “steps he took, or obstacles that he faced, in pursuing his [m]otion.”
The IJ specifically addressed Daoud‘s assertions that in her earlier oral decision, she had erred in assessing his competency and declining to apply safeguards. The IJ noted that although she had erroneously stated there were no indicia of incompetency, she had nevertheless proceeded as if Daoud had presented indicia of incompetency and “conducted the necessary competency assessment.” Specifically, the IJ stated that given Daoud‘s testimony and demeanor over the course of the December 12 hearing, she found that Daoud‘s testimony was “fully coherent, responsive to the questions asked of him, and that his answers were appropriаte in all pertinent respects.” Further, when Daoud testified about his mental health, the IJ asked Daoud follow up questions about the nature of his mental state and ensured that he understood the questions he was asked. The IJ concluded that she had properly determined that Daoud was competent, so no safeguards were needed.
Viewing Daoud‘s motion as a motion to reconsider, the IJ declined to equitably toll the deadline fоr the same reasons as for the denial of the motion to reopen. Accordingly, the IJ denied Daoud‘s dual motion. The IJ also declined to reopen or reconsider sua sponte, explaining that Daoud had not made a “prima facie showing that he is eligible for the relief he seeks,” had not established “exceptional circumstances warrant[ing] reopening,” and that “serious doubts” had been raised about his credibility.
C. BIA Decision
Daoud appealed the IJ‘s decision to the BIA. Daoud‘s briefing to the BIA challenged the IJ‘s decisions not to equitably toll the filing deadlines and that he had not satisfied the changed country conditions exception to the ninety-day filing deadline for motions to reopen.4 He also argued that the IJ erred in declining to reopen sua sponte, and in “declining to reopen on the basis that relief would not be granted in the exercise of discrеtion.”
On February 21, 2019, the BIA dismissed Daoud‘s appeal. As to Daoud‘s motion to reopen, the BIA provided two independent and alternative rationales for affirming. It held that the post-departure
As said, we review only the alternative holding. As to its alternative holding, the BIA stated that even if the post-departure bar did not prevent Daoud‘s motion to reopen, it would deny the motion in the exercise of its discretiоn because “the weight of the evidence . . . would not justify reopening of an asylum, withholding of removal, or [CAT] case, from abroad, years after the final administrative order was entered, after proceedings on the merits of [Daoud‘s] case in the first instance have already concluded with an order of removal.” The BIA noted that this was “particularly so in light of the significant passage of time since the order of removal in 2013 and [Daоud‘s] serious criminal history.”
As to equitable tolling, the BIA described in detail the argument that Daoud had presented to the IJ, stating that Daoud “argues that to the extent the [ninety]-day filing deadline applies, it should be equitably tolled because of the effects of his mental illness and his detention upon returning to Sudan, which prevented him from timely filing the motion.” The BIA then summarized the IJ‘s conclusion that Daoud “did not establish that the filing deadline should be equitably tolled” because he “did not establish that he exercised due diligence in pursuing his motion.”
In its discussion of the motion to reopen, the BIA also made references to timeliness. The BIA specifically stated that Daoud “had until March 12, 2014, to file a timely motion to reopen within the applicable deadline.” The BIA then noted that Daoud was not physically removed to Sudan until May 2014, which was about two months after the ninety-day deadline to file a motion to reopen had expired. The BIA also repeatedly referred to Daoud‘s motion to reopen as “untimely.”
Looking at the motion as one to reconsider, the BIA explicitly affirmed the IJ‘s denial of the motion as untimely. The BIA noted that Daoud‘s motion was “filed almost [two] years after the final administrative order” and found that there was “no basis to conclude the [thirty]-day filing deadline does not apply or that sua sponte reconsiderаtion is warranted.”
Daoud timely petitioned for review to this court.
II.
Our jurisdiction is limited by statute: “no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in . . . [§]
Under this bar, our jurisdiction is limited to review of “constitutional claims or questions of law.”
We reject Daoud‘s effort to avoid the jurisdictional bar by presenting what he claims are two issues of law. He first argues the BIA lacked the authority to deny his motion to reopen on discretionary grounds because, in his view, such discretion would conflict with the nondiscretionary nature of the motion to reopen statute,
Daoud‘s challenge to the BIA‘s discretion is not before us because he has not presented us with a question of law capable of our review. He seeks to challenge the BIA‘s decision to deny his motion to reopen, which it explicitly stated that it took in the exercise of its discretion. As noted by the IJ in her decision of February 9, 2016, an IJ “has discretion to deny a motion to reopen even if the moving party has established a prima facie case for relief.”
While Daoud seeks to repackage his argument on appeal as a challenge to the source of this discretion, he did not contend before the BIA that the BIA could not rely on the regulations identified by the IJ and the corollary BIA regulation. His suggestion to the BIA that withholding of removal and CAT protection are “[non]discretionary” was not sufficient to exhaust this issue either. While he now argues that the BIA lacks discretion to deny motions to reopen to apply for such relief, before the BIA he only noted that asylum is a “discretionary” form of such relief. And “arguments not raised before the BIA are waived due to a failure to exhaust administrative remedies.” Shah v. Holder, 758 F.3d 32, 37 (1st Cir. 2014) (quoting Molina De Massenet v. Gonzales, 485 F.3d 661, 664 (1st Cir. 2007)).7
Second, he argues he still has an argument that the BIA failed to consider equitable tolling. Daoud‘s argument fails for two reasons. First, we have held that “the decision tо apply equitable tolling is a judgment call,” meaning the BIA‘s discretionary decision to deny relief eliminates any need for it to consider equitable tolling. Gyamfi v. Whitaker, 913 F.3d 168, 174 (1st Cir. 2019). Second, the very premise of Daoud‘s argument is unsupported; the BIA did consider, and reject, the application of equitable tolling to this case. It explicitly described Daoud‘s equitable tolling argument and the IJ‘s reasoning for rejecting it.8 The BIA also noted that the deadline had exрired even before Daoud was removed to Sudan and repeatedly described his motion as “untimely.” Indeed, the BIA concluded that it saw “no basis” to extend the thirty-day deadline for the motion to reconsider. Daoud‘s arguments for equitably tolling the deadline for both motions were the same and the IJ applied her reasoning on the motion to reopen to the motion to reconsider. So, as the government rightly states, the BIA did consider, and reject, the argument and there would be no point in a remand.
The BIA made it evident in its opinion that it was rejecting the argument. See Sulaiman v. Gonzales, 429 F.3d 347, 350 (1st Cir. 2005) (stating that while the IJ “did not use the phrase ‘past persecution[,]’ [i]t is nevertheless evident from her opinion that she found no indication that Sulaiman‘s experiences in Syria amounted to persecution“); id. at 351 (“We do not require an IJ to intone any magic words before we will review her determination.“). As such, there is nо legal issue for us to review.
Daoud‘s petition for review is dismissed.