Nak Chhoeun v. Attorney General United States ( 2020 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 18-2335
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NAK KIM CHHOEUN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
______________
On Petition for Review of a Decision
of the Board of Immigration Appeals
(A025-183-587)
Immigration Judge: Grace A. Sease
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
October 22, 2019
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Before: GREENAWAY, JR., PORTER, and COWEN,
Circuit Judges
(Filed: March 4, 2020)
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OPINION ∗
______________
∗
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PORTER, Circuit Judge.
Nak Kim Chhoeun moved to the United States from Cambodia when he was six
years old. After being arrested in 1997, Chhoeun pleaded guilty to several crimes,
including simple assault and carrying firearms on public streets. In 2002, an Immigration
Judge ordered him removable. Yet the United States never deported Chhoeun. Instead,
Immigration and Customs Enforcement (“ICE”) placed Chhoeun under supervision in
2003.
Well over a decade later, ICE detained Chhoeun in October 2017. Only after his
2017 detention did Chhoeun then decide to seek reopening and reconsideration of his
case. The Board of Immigration Appeals (“BIA”) denied Chhoeun’s challenge. He now
petitions for review of the BIA’s order. Chhoeun’s arguments lack merit, so we will deny
in part and dismiss in part his petition.
I
Chhoeun was born in Cambodia in 1975. In 1981, he and his family were admitted
to the United States as refugees. He became a lawful permanent resident in 1984. In
1997, the police arrested Chhoeun, and he was charged with aggravated assault under 18
Pa. Cons. Stat. § 2702(a) and conspiracy to commit aggravated assault under 18 Pa.
Cons. Stat. § 903(a). A jury found him guilty of the conspiracy charge but not guilty of
the aggravated assault charge. A trial court later vacated Chhoeun’s original sentence for
conspiracy to commit aggravated assault.
While awaiting his criminal trial, Chhoeun was charged with crimes relating to his
carrying a gun on a public street. These new charges were (1) carrying firearms on public
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streets under 18 Pa. Cons. Stat. § 6108, (2) misdemeanor simple assault under 18 Pa.
Cons. Stat. § 2701(a), and (3) conspiracy to commit simple assault under 18 Pa. Cons.
Stat. § 903(a). Chhoeun pleaded guilty to all three offenses that related to carrying a gun
on a public street.
Eventually, Chhoeun received a notice to appear before the Immigration and
Naturalization Service (“INS”). The INS asserted that Chhoeun was deportable for three
reasons. First, Chhoeun was convicted of a firearms offense, in violation of 8 U.S.C.
§ 1227(a)(2)(C). Second, Chhoeun was convicted of an aggravated felony, defined as a
crime of violence for which the term of incarceration is one year or more, in violation of
8 U.S.C. § 1227(a)(2)(A)(iii). And third, Chhoeun was convicted of an aggravated felony,
defined as an attempt or conspiracy to commit an offense amounting to an aggravated
felony, in violation of 8 U.S.C. § 1227(a)(2)(A)(iii).
Chhoeun conceded that he could be removed for his firearms conviction, but he
challenged his deportability based on his aggravated felony convictions. 1 The
Immigration Judge held that Chhoeun could be removed, finding that Chhoeun had been
convicted of a crime of violence that amounted to an aggravated felony. The Immigration
Judge ordered Chhoeun’s deportation.
Chhoeun then appealed the Immigration Judge’s decision to the BIA. Chhoeun
mainly asserted that the Immigration Judge erred by concluding that his simple assault
1
On June 4, 2018, the Court of Common Pleas of Philadelphia County issued an
amended order that clarified that Chhouen pleaded guilty to 18 Pa. Const. Stat.
§ 2701(a)(1). For the reasons explained later, see infra note 4, we may not and thus will
not consider the amended order.
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conviction amounted to an aggravated felony. The BIA rejected his arguments and
dismissed Chhoeun’s appeal in May 2003. After losing that appeal, Chhoeun remained in
custody until a district court granted Chhoeun habeas relief in 2003. After his release,
ICE placed Chhoeun on an order of supervision.
More than a decade later in October 2017, Chhoeun received a letter requesting
that he report to an ICE office. When he arrived at the office, ICE detained him. After
meeting with counsel, Chhoeun filed his motion to reopen and reconsider the BIA’s 2013
decision. He claimed that “the BIA and the Supreme Court rejected the analysis
sustaining the aggravated felony charge of removability” during the time since his 2003
appeal. R 35. He alternatively requested that the BIA reopen his case sua sponte. The
BIA denied Chhoeun’s motion, and he petitioned for review.
II
The BIA had jurisdiction to consider Chhoeun’s motion to reopen and reconsider
under 8 C.F.R. § 1003.2(b)–(c). Because Chhoeun is an alien removable for a firearm
offense under 8 U.S.C. § 1227(a)(2)(C), our jurisdiction is limited to constitutional claims
and questions of law. 8 U.S.C. § 1252(a)(2)(C)–(D). The standard of review is de novo.
Roye v. Att’y Gen., 693 F.3d 333, 339 (3d Cir. 2017).
Additionally, under 8 C.F.R. § 1003.2(a), the BIA had jurisdiction to consider
Chhoeun’s request for sua sponte reopening. But because 8 C.F.R. § 1003.2(a) includes
no standard governing the BIA’s discretion to reopen a case sua sponte, we generally lack
jurisdiction to review a denial of a sua sponte reopening. Calle-Vujiles v. Ashcroft, 320
F.3d 472, 475 (3d Cir. 2003) (“Because the BIA retains unfettered discretion to decline to
4
sua sponte reopen or reconsider a deportation proceeding, this court is without
jurisdiction to review a decision declining to exercise such discretion to reopen or
reconsider the case.”).
III
Chhoeun raises two issues in his petition for review. First, he contends that the
BIA erred by denying his motion to reopen and reconsider. Second, Chhoeun believes
that the BIA should have reopened his case sua sponte. We disagree, so we will deny in
part and dismiss in part Chhoeun’s petition for review.
A
First, Chhoeun challenges the denial of his motion to reopen and reconsider.
Chhoeun moved to reopen and reconsider almost fifteen years after the Immigration
Judge issued the order of removal. The BIA found that Chhoeun’s motion was untimely.
To be timely, a motion to reconsider must be filed within thirty days of the final order of
removal. 8 U.S.C. § 1229a(c)(6)(B); 8 C.F.R. § 1003.2(b)(2). A motion to reopen must be
filed within ninety days of the final order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i); 8
C.F.R. § 1003.2(c)(2). Chhoeun filed the motion to reopen and reconsider well beyond
these two deadlines.
Despite the extreme untimeliness of his motion, Chhoeun still asserts that the BIA
incorrectly denied his motion to reopen and reconsider. He argues that the BIA should
have equitably tolled the filing deadlines for his motion. But Chhoeun’s argument fails.
On one hand, we have held that motions to reopen are subject to equitable tolling. See,
e.g., Alzaarir v. Att’y Gen., 639 F.3d 86, 90 (3d Cir. 2011). On the other hand, we have
5
not held that motions to reconsider are subject to equitable tolling. 2 Yet we need not
decide here whether equitable tolling applies to motions to reconsider. Because Chhoeun
fails to provide enough evidence to justify equitable tolling, we will assume without
deciding that equitable tolling applies to his motion to reconsider.
“Equitable tolling is an extraordinary remedy which should be extended only
sparingly.” Hedges v. United States, 404 F.3d 744, 751 (3d Cir. 2005). To receive
equitable tolling, an alien must have acted with due diligence “over the entire period for
which tolling is desired.” Alzaarir, 639 F.3d at 90; see also Mahmood v. Gonzales, 427
F.3d 248, 252–53 (3d Cir. 2005).
The BIA ultimately held that Chhoeun failed to act with sufficient diligence to
merit equitable tolling of the deadlines for his motion. It found that “[t]he record reflects
that the [BIA] did not receive the motion until February 5, 2018, almost [fifteen] years
after the [BIA’s] decision.” A 4. “To the extent that [Chhoeun] is arguing that his motion
is subject to equitable tolling of the time and number limits, we do not find that [he]
acted with due diligence between the issuance of the Supreme Court’s and [the BIA’s]
decisions and the filing of the current motion.” A 5 (emphasis added). 3
2
One panel of this Court has held that equitable tolling applies to both motions to reopen
and motions to reconsider. See Rios v. Att’y Gen., 615 F. App’x 752, 755 (3d Cir. 2015)
(citation omitted). But non-precedential opinions are not binding under I.O.P. 5.7.
3
Chhoeun believes that the BIA considered his due diligence argument only for his
motion to reopen—but not for his motion to reconsider. This argument is nothing more
than Chhoeun trying to have it both ways. He titled his motion a “motion to reopen and
reconsider.” R 34. He framed his argument about equitable tolling this way: “Mr.
Chhoeun’s motion is timely because he is entitled to equitable tolling.” R 42 (emphasis
added). And he argued before the BIA that equitable tolling applied to the “motion”—the
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Chhoeun disagrees with the BIA’s conclusion that he failed to exercise enough
diligence. Chhoeun mainly argues that the BIA’s “failure to consider any of the evidence
Mr. Chhoeun submitted” prejudiced him and deprived him of due process. See
Petitioner’s Br. at 34–36. The evidence of Chhoeun’s entitlement to equitable tolling—
the evidence he claims that the BIA ignored—includes the facts that (1) Chhoeun is a
member of an underserved population, (2) Chhoeun could not understand developments
in law or how to access legal services, and (3) Chhoeun learned for the first time in
January 2018 that a motion to reopen and reconsider could furnish him relief. Chhoeun
alternatively requests that we remand his case to the BIA to consider further Chhoeun’s
arguments. We are unpersuaded.
We may review Chhoeun’s argument because a diligence determination is a
question of law. 8 U.S.C. § 1252(a)(2)(D); see Borges v. Gonzales, 402 F.3d 398, 407 (3d
Cir. 2005). Based on the facts found by the BIA, we will decide as a matter of law
whether Chhoeun failed to act with due diligence. See Roye, 693 F.3d at 339; Pierre v.
Att’y Gen., 528 F.3d 180, 184 (3d Cir. 2008) (en banc).
The BIA found that Chhoeun lacked the requisite diligence because Chhoeun
allowed nearly fifteen years to elapse before he filed his motion to reopen and reconsider.
The BIA’s conclusion conforms to our precedent. See Alzaarir, 639 F.3d at 90 (noting
that the delay of four and a half years showed a lack of due diligence); Mahmood, 427
entire motion. Then, the BIA, in turn, dispatched with his equitable tolling argument as it
related to the “motion.” Thus, the BIA adequately considered the diligence arguments
presented by Chhoeun.
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F.3d at 252 (noting that the delay of eighteen months precluded a finding that the alien
exercised due diligence). Chhoeun’s motion was much less timely than the ones filed in
Alzaarir and Mahmood, so he failed to show that he undertook due diligence.
We also find unconvincing Chhoeun’s excuses for waiting nearly fifteen years to
file his motion to reopen and reconsider. In Mahmood, we rejected arguments like those
advanced by Chhoeun. 427 F.3d at 253 (finding that although the alien may have
struggled to “negotiat[e] the shoals of American law, we are also mindful that [e]quitable
tolling is an extraordinary remedy” (internal quotation marks and citations omitted)
(second alteration in original)). Thus, Chhoeun’s arguments fail.
Chhoeun failed to provide any evidence to justify his delay. His lack of diligence
is untenable under our precedent. See id. at 252. Our sister circuits have likewise declined
to employ equitable tolling when, like here, an alien fails to point to any evidence
justifying his delay. See, e.g., Ma v. Holder, 358 F. App’x 283, 286 (2d Cir. 2009);
Gevorkia v. I.N.S., 20 F. App’x 757, 758–59 (9th Cir. 2001). Thus, Chhoeun failed to act
with enough diligence as a matter of law. We will deny Chhoeun’s petition to review the
BIA’s denial of his motion to reopen and reconsider.
B
Chhoeun next challenges the BIA’s refusal to reopen his case sua sponte. “The
B[IA] may at any time reopen or reconsider on its own motion any case in which it has
rendered a decision.” 8 C.F.R. § 1003.2(a). For the BIA to reopen a case sua sponte, an
alien must show an “exceptional situation.” Cruz v. Att’y Gen., 452 F.3d 240, 249 (3d
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Cir. 2006) (citations omitted). The BIA “has discretion to deny a motion to reopen even if
the party moving has made out a prima facie case for relief.” 8 C.F.R. § 1003.2(a).
In general, “decisions wholly within an agency’s discretion are unreviewable.”
Cruz, 452 F.3d at 249. An agency’s discretionary decision not to reopen a case sua sponte
“is near absolute” and “functionally unreviewable[.]” Park v. Att’y Gen., 846 F.3d 645,
650–51 (3d Cir. 2017) (citation omitted). But we have jurisdiction to review a decision
not to reopen a case sua sponte when, for example, the “BIA relies on an incorrect legal
premise in denying a motion to reopen sua sponte.” Id. at 651.
Chhoeun argues that we may review the BIA’s decision not to reopen his case sua
sponte because the decision was predicated on an incorrect legal premise. He claims that
the BIA incorrectly decided—based on a false legal premise—that Chhoeun was
convicted of an aggravated felony. We disagree. At the outset, we observe that the BIA
based its decision on “the entirety of the circumstances presented in this case, including
the respondent’s criminal history[.]” A 5. In Park, we held that a BIA’s decision based on
“the totality of the circumstances presented” not to reopen a case sua sponte rested within
the nearly unfettered discretion afforded to the BIA. See Park, 846 F.3d at 649–51. Here,
we will likewise not disturb the BIA’s conclusion that, based on all the circumstances,
Chhoeun failed to show an exceptional situation.
But assuming arguendo that the BIA based its decision solely on Chhoeun’s
aggravated felony conviction, the BIA did not rely on an incorrect legal premise. A court
generally employs the “categorical approach” when discerning whether a prior conviction
amounts to an aggravated felony, but when a criminal statute is “‘divisible,’ a court may
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resort to the ‘modified categorical approach.’” United States v. Ramos, 892 F.3d 599,
606–07 (3d Cir. 2018) (citation omitted). “A divisible statute sets out one or more
elements in the alternative, most often using disjunctive language to list multiple,
alternative criminal offenses.” Id. at 608 (citation omitted) (emphasis in original).
Chhoeun was convicted of simple assault under 18 Pa. Const. Stat. § 2701(a),
which is a statute divisible into four separate crimes. We have already implicitly
recognized that § 2701(a) is divisible, and we have held that the similarly-structured 18
Pa. Cons. Stat. § 2702(a) is divisible. See Singh v. Gonzales, 432 F.3d 533, 539–40 (3d
Cir. 2006) (holding that 18 Pa. Cons. Stat. § 2701(a)(3) is a crime of violence under 18
U.S.C. § 16(a)); Popal v. Gonzales, 416 F.3d 249, 254–55 (3d Cir. 2005) (holding that 18
Pa. Cons. Stat. § 2701(a)(1) is not a crime of violence under 18 U.S.C. § 16(a) or
§ 16(b)); cf. Ramos, 892 F.3d at 609 (finding that that the “modified categorial approach”
applies to 18 Pa. Cons. Stat. § 2702(a) because the statute is divisible). Thus, the
“modified categorical approach” applies here.
Chhoeun was charged with criminal conduct satisfying elements of two types of
simple assault under § 2701(a)—conduct proscribed by § 2701(a)(1) and § 2701(a)(3).
The record is unclear about whether Chhoeun pleaded guilty to simple assault under
§ 2701(a)(1) or § 2701(a)(3). But that ambiguity is not enough for Chhoeun to receive
relief from removal. “[A]n inconclusive record of conviction does not satisfy a
noncitizen’s burden of demonstrating eligibility for relief from removal.” Syblis v. Att’y
Gen., 763 F.3d 348, 357 (3d Cir. 2014). Chhoeun has failed to show that the BIA’s
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decision not to reopen his case sua sponte was based on an incorrect legal premise. 4 Thus,
we lack jurisdiction to review the BIA’s decision.
* * *
For the reasons stated above, we reject both of Chhoeun’s challenges. We will
deny the petition to review the BIA’s denial of Chhoeun’s motion to reopen and
reconsider. We also lack jurisdiction to review the BIA’s decision not to reopen
Chhoeun’s case sua sponte, so we will dismiss that part of Chhoeun’s petition for review.
4
In his reply brief, Chhoeun attached the amended order from the Court of Common
Pleas of Philadelphia County clarifying that Chhoeun pleaded guilty to § 2701(a)(1)—
and not § 2701(a)(3). According to Chhoeun, this order amounts to proof that he was not
convicted of an aggravated felony. But there are two problems with Chhoeun’s argument.
As an initial matter, Chhoeun first raised the argument in his reply brief, so he forfeited
it. See Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 146–47 (3d
Cir. 2017). But more importantly, the BIA made its decision without having the order
before it. The Court of Common Pleas issued its order on June 4, 2018, which was after
the BIA denied Chhoeun’s request to reopen his case sua sponte on May 16, 2018. When
the BIA considered Chhoeun’s request to reopen his case sua sponte, ambiguity existed
as to which subsection of § 2701(a) Chhoeun pleaded guilty. Before the BIA, Chhoeun
failed to meet his burden of showing entitlement to relief from removal. See Syblis, 763
F.3d at 357.
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