Barrie v. Garland ( 2023 )

20-1787
Barrie v. Garland
BIA
A095 473 987
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED
AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS
COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY
NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 10th day of January, two thousand twenty-
5 three.
6
7 PRESENT:
8 RICHARD J. SULLIVAN,
9 WILLIAM J. NARDINI,
10 EUNICE C. LEE,
11 Circuit Judges.
12 _____________________________________
13
14 AMADU M. BARRIE,
15 Petitioner,
16
17 v. 20-1787
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24
25 FOR PETITIONER: Justine A. Marous, Marous Law
26 Group, P.C., New York, NY.
27
28
1
2 FOR RESPONDENT: Brian Boynton, Acting Assistant
3 Attorney General; Paul Fiorino ,
4 Senior Litigation Counsel; Kevin
5 J. Conway, Trial Attorney, Office
6 of Immigration Litigation, United
7 States Department of Justice,
8 Washington, DC.
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioner Amadu M. Barrie, a native and citizen of
14 Sierra Leone, seeks review of a May 11, 2020, decision of the
15 BIA denying his motion to reopen his removal proceedings to
16 pursue adjustment to lawful permanent resident status based
17 on a pending visa petition filed by his U.S. citizen wife.
18 In re Barrie, No. A095 473 987 (B.I.A. May 11, 2020). We
19 assume the parties’ familiarity with the underlying facts and
20 procedural history.
21 We review the BIA’s denial of a motion to reopen for
22 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
23 Cir. 2006). “An abuse of discretion may be found in those
24 circumstances where the Board’s decision provides no rational
25 explanation, inexplicably departs from established policies,
2
1 is devoid of any reasoning, or contains only summary or
2 conclusory statements; that is to say, where the Board has
3 acted in an arbitrary or capricious manner.” Kaur v. BIA,
4 413 F.3d 232, 233–34 (2d Cir. 2005) (quotation marks
5 omitted).
6 A noncitizen seeking to reopen removal proceedings
7 generally may file one motion to reopen no later than 90 days
8 after the date on which the final administrative decision was
9 rendered. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.
10 § 1003.2(c)(2). It is undisputed that Barrie’s 2020 motion
11 to reopen was untimely because he filed it more than 12 years
12 after his 2007 removal order.
13 A movant who demonstrates ineffective assistance of
14 counsel may be entitled to equitable tolling of the deadline
15 for a motion to reopen. Rashid v. Mukasey, 533 F.3d 127,
16 130–31 (2d Cir. 2008). Barrie alleged that his prior
17 attorney was ineffective, principally for failing to file
18 documents in support of his appeal to the BIA or inform him
19 of the outcome of the appeal in time to petition this Court
20 for review. To qualify for tolling, a movant must — among
21 other things — demonstrate that he “exercised due diligence
3
1 during the entire period” to be tolled. Id. at 132; see also
2 Iavorski v. INS, 232 F.3d 124, 135 (2d Cir. 2000). The movant
3 must demonstrate diligence during “both the period of time
4 before the ineffective assistance of counsel was or should
5 have been discovered and the period from that point until the
6 motion to reopen is filed.” Rashid, 533 F.3d at 132; see
7 also Cekic v. INS, 435 F.3d 167, 170–71 (2d Cir. 2006) (movant
8 bears burden to establish diligence). Whether the movant
9 acted within a reasonable time depends on the circumstances
10 of each case, “namely, whether and when the ineffective
11 assistance was, or should have been, discovered by a
12 reasonable person in the situation.” Jian Hua Wang v. BIA,
13 508 F.3d 710, 715 (2d Cir. 2007) (quotation marks and brackets
14 omitted).
15 The BIA did not err in concluding that Barrie failed to
16 exercise the diligence necessary for equitable tolling. 1 It
17 reasonably found, based on Barrie’s affirmation, that Barrie
18 learned that his former attorney failed to timely inform him
1 As Barrie’s untimely motion to reopen based on ineffective assistance
does not meet the requirements for equitable tolling, , we do not reach
the agency’s alternative finding that Barrie failed to comply with the
procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A.
1988).
4
1 of the BIA decision ordering his removal shortly after the
2 time to petition for review of that decision lapsed in 2007.
3 Barrie alleged that he sought the advice of other attorneys
4 beginning in 2011; but, even if those consultations
5 established a diligent pursuit of his rights between 2011 and
6 2020, Barrie offers no justification for his failure to act
7 between 2007 and 2011. We have found a lack of diligence
8 based on substantially shorter periods of inaction. See
9 Rashid, 533 F.3d at 132–33 (no diligence where petitioner
10 learned of BIA’s adverse decision, made one phone call to
11 counsel, and then waited 14 months to seek new counsel); Jian
12 Hua Wang, 508 F.3d at 715–16 (upholding denial of reopening
13 where petitioner waited eight months after discovering
14 ineffective assistance to file motion); Cekic, 435 F.3d at15 171–72 (no diligence where petitioners waited two years after
16 discovering ineffective assistance and submitted no evidence
17 of actions taken); Iavorski, 232 F.3d at 134–35 (no diligence
18 where petitioner waited two years).
19 Absent equitable tolling, Barrie’s motion to reopen to
20 apply to adjust status was untimely. See Matter of Yauri,
21 25 I. & N. Dec. 103, 105 (B.I.A. 2009) (“emphasiz[ing] that
5
1 untimely motions to reopen to pursue an application for
2 adjustment of status . . . do not fall within any of the
3 statutory or regulatory exceptions to the time limits for
4 motions to reopen before the Board and will ordinarily be
5 denied”); In re Velarde-Pacheco, 23 I. & N. Dec. 253, 256
6 (B.I.A. 2002) (listing timeliness as first requirement of
7 motion to reopen to adjust status). Accordingly, his motion
8 “could only be considered upon exercise of the Agency’s sua
9 sponte authority” to reopen despite the time limits. Mahmood
10 v. Holder, 570 F.3d 466, 469 (2d Cir. 2009); see also 8 C.F.R.
11 § 1003.2(a) (version in effect until Jan. 14, 2021). The BIA
12 invokes this authority only in “exceptional situations,” not
13 as a “general cure for filing defects or to otherwise
14 circumvent the regulations, where enforcing them might result
15 in hardship.” In re J-J-, 21 I. & N. Dec. 976, 984 (B.I.A.
16 1997).
17 The agency’s decision whether to exercise its sua sponte
18 reopening authority is “entirely discretionary” and not
19 subject to judicial review by this Court. Ali, 448 F.3d at20 518. There is one exception: “where the [BIA] may have
21 declined to exercise its sua sponte authority because it
6
1 misperceived the legal background and thought, incorrectly,
2 that a reopening would necessarily fail, remand to the [BIA]
3 for reconsideration in view of the correct law is
4 appropriate.” Mahmood, 570 F.3d at 469. Here, the agency
5 gave two reasons for denying sua sponte reopening: the absence
6 of exceptional circumstances, and Barrie’s failure to
7 demonstrate prima facie eligibility for adjustment of status.
8 Barrie argues that the agency failed to adequately
9 consider evidence of hardship to his family, and it overlooked
10 or gave insufficient weight to evidence showing his
11 eligibility to adjust status, some of which had been filed in
12 support of a prior motion to reopen. As to hardship, the BIA
13 acknowledged Barrie’s contention that equities warranted a
14 favorable exercise of discretion, and “we presume that [the
15 agency] has taken into account all of the evidence before
16 [it], unless the record compellingly suggests otherwise.”
17 Xiao Ji Chen v. U.S. Dep’t of Just., 471 F.3d 315, 336 n.17
18 (2d Cir. 2006). The BIA is not required to “expressly parse
19 or refute on the record each individual argument or piece of
20 evidence offered by the petitioner.” Wei Guang Wang v. BIA,
21 437 F.3d 270, 275 (2d Cir. 2006) (quotation marks
7
1 omitted). Additionally, the BIA’s sua sponte authority is
2 generally not a basis to relieve a petitioner of the hardship
3 of the filing limitations. See In re G-D-, 22 I.
4 & N. Dec. 1132, 1133–34 (B.I.A. 1999) (“As a general matter,
5 [the BIA] invoke[s] [its] sua sponte authority sparingly,
6 treating it not as a general remedy for any hardships created
7 by enforcement of the time and number limits in the
8 motions regulations, but as an extraordinary remedy reserved
9 for truly exceptional situations.”).
10 As to his eligibility for relief, Barrie provides no
11 authority for his implicit argument that the BIA was required
12 to consider evidence submitted in support of a prior motion
13 to reopen in adjudicating a later motion. Even taking that
14 evidence into account, the agency did not misperceive
15 Barrie’s eligibility to adjust to lawful permanent resident
16 status because there was no evidence that the visa petition
17 his wife had filed on his behalf had been approved. See
18 8 U.S.C. § 1255(a) (requiring an “immediately available”
19 immigrant visa for adjustment of status); see also Drax v.
20 Reno, 338 F.3d 98, 113–14 (2d Cir. 2003).
21
8
1 For the foregoing reasons, the petition for review is
2 DENIED. All pending motions and applications are DENIED and
3 stays VACATED.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe,
6 Clerk of Court
9