Moussa Sow Bolo v. William Barr ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0558n.06
No. 20-3153
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
MOUSSA SOW BOLO, aka Bolo Moussa ) Sep 29, 2020
Sow, ) DEBORAH S. HUNT, Clerk
)
Petitioner, ) ON PETITION FOR REVIEW
) FROM THE BOARD OF
v. ) IMMIGRATION APPEALS
)
WILLIAM P. BARR, Attorney General, )
)
Respondent. )
BEFORE: BATCHELDER, GRIFFIN, and MURPHY, Circuit Judges.
PER CURIAM. Moussa Sow Bolo, also known as Bolo Moussa Sow, petitions this court
for review of an order of the Board of Immigration Appeals (BIA) denying her motion to reopen
her removal proceedings. As set forth below, we DENY in part and DISMISS in part Sow’s
petition for review.
Sow, a native and citizen of Mauritania, entered the United States in 2000.
Sow subsequently filed an application for asylum, withholding of removal, and protection under
the Convention Against Torture (CAT). The Immigration and Naturalization Service served Sow
with a notice to appear in removal proceedings, initially charging her with removability as an alien
who was not in possession of a valid entry or travel document at the time of entry. See 8 U.S.C.
§ 1227(a)(1)(A). The government later amended the charge to allege that Sow was an alien present
in the United States without being admitted or paroled after inspection. See 8 U.S.C.
§ 1182(a)(6)(A)(i). Appearing before an immigration judge (IJ), Sow conceded that she was
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subject to removal but denied that she entered without inspection. Sow filed an updated application
for asylum, withholding of removal, and CAT protection, asserting that the police arrested, beat,
and threatened her on account of her support for a widows’ group advocating for equal rights for
the black population in Mauritania. After a hearing, the IJ denied Sow’s applications for relief.
The IJ sustained the amended charge, finding that Sow entered the United States without
inspection. The IJ went on to find that Sow was not credible and that, even if believed, she had
failed to satisfy her burdens of proof. The BIA affirmed the IJ’s decision without opinion on
March 21, 2003.
Sixteen years later, on September 16, 2019, Sow filed a motion with the BIA to reopen her
removal proceedings. In support of her motion to reopen, Sow asserted that her attorney, Patrick
Salley, provided ineffective assistance during her removal proceedings by failing to seek relief
based on her past persecution as a victim of female genital mutilation (FGM) in Mauritania. Sow
also sought reopening to apply for adjustment of status based on an approved relative-visa petition
filed by her United States citizen husband. Recognizing that her motion to reopen was filed after
the 90-day deadline, Sow argued that her attorney’s ineffective assistance constituted an
extraordinary circumstance warranting equitable tolling or, in the alternative, that the BIA should
exercise its discretion to reopen her case sua sponte.
The BIA denied Sow’s motion to reopen. The BIA determined that Sow was not entitled
to equitable tolling of the 90-day deadline because she had failed to demonstrate that she acted
with due diligence. And the BIA declined to reopen the proceedings sua sponte because Sow had
failed to identify any exceptional circumstances to warrant that remedy.
This timely petition for review followed. Sow argues that the BIA should have granted her
motion to reopen because her attorney’s ineffective assistance prevented her from pursuing
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meritorious claims for relief based on FGM and because she established her prima facie eligibility
for adjustment of status.
“We review the BIA’s denial of a motion to reopen removal proceedings for abuse of
discretion.” Trujillo Diaz v. Sessions, 880 F.3d 244, 248 (6th Cir. 2018). The BIA “abuses its
discretion only when its determination was made ‘without a rational explanation, inexplicably
departed from established policies, or rested on an impermissible basis such as invidious
discrimination against a particular race or group.’” Santos-Santos v. Barr, 917 F.3d 486, 489 (6th
Cir. 2019) (quoting Camaj v. Holder, 625 F.3d 988, 991 (6th Cir. 2010)). Because the BIA has
broad discretion to grant or deny a motion to reopen, a party who seeks reopening “bears a ‘heavy
burden.’” Alizoti v. Gonzales, 477 F.3d 448, 451 (6th Cir. 2007) (quoting INS v. Doherty, 502
U.S. 314, 323 (1992)).
A motion to reopen must “be filed within 90 days of the date of entry of a final
administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(C)(i); see 8 C.F.R. § 1003.2(c)(2). The
90-day deadline for filing a motion to reopen may be equitably tolled when an alien “received
ineffective assistance of counsel and was prejudiced thereby.” Mezo v. Holder, 615 F.3d 616, 620
(6th Cir. 2010). An alien seeking equitable tolling must, “at a minimum,” establish due diligence.
Id. (quoting Ajazi v. Gonzales, 216 F. App’x 515, 519 (6th Cir. 2007)). “Due diligence requires
an alien to prove that the delay in filing the motion to reopen was due to ‘an exceptional
circumstance beyond [her] control.’” Tapia-Martinez v. Gonzales, 482 F.3d 417, 423 (6th Cir.
2007) (quoting Scorteanu v. INS, 339 F.3d 407, 414 (6th Cir. 2003)).
The BIA determined that Sow was not entitled to equitable tolling of the 90-day deadline
because she failed to establish due diligence. The BIA pointed out that Sow admittedly learned of
the final order of removal in 2006. According to the BIA, Sow had failed to explain adequately
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how she exercised due diligence from the time that she discovered the claimed ineffective
assistance to the time that she filed her motion to reopen on September 16, 2019.
In support of her petition for review, Sow asserts that she did not realize that her having
been subjected to FGM in Mauritania could be a basis for her asylum claim until she spoke with
the attorney who filed her motion to reopen. Sow did not make this argument in her motion to
reopen. Sow instead asserted in that motion that she told Salley about being forced to undergo
FGM in Mauritania and, when she saw a copy of her application, asked him why he did not include
the facts relating to her FGM. These statements in her motion to reopen indicate that Sow was
aware of her potential claim based on FGM and Salley’s alleged ineffectiveness at the time of her
removal proceedings.
Even if we assume that Sow did not discover her potential claim based on FGM until she
spoke with the attorney who filed her motion to reopen, she has failed to establish that she
exercised due diligence. Sow did not provide any timeframe for the discovery of her potential
claim, such as when she first approached counsel about filing a motion to reopen. At some point,
Sow filed a complaint with the Michigan Attorney Grievance Commission about Salley, but she
did not attach a copy of the complaint to her motion to reopen or provide a date for the filing of
the complaint. Sow did attach a copy of the commission’s response dated April 24, 2018. Sow
was therefore aware of Salley’s alleged ineffectiveness before that date yet waited another
seventeen months, until September 16, 2019, to file her motion to reopen. See id. (holding that a
fifteen-month delay after discovering attorney’s deficient performance “cannot be considered due
diligence”). The BIA did not abuse its discretion in determining that Sow was not entitled to
equitable tolling based on her failure to establish due diligence.
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We lack jurisdiction to review Sow’s challenge to the BIA’s denial of her request to reopen
her removal proceedings sua sponte. “[T]he BIA’s exercise of its sua sponte authority ‘is
committed to its unfettered discretion and therefore is not subject to judicial review.’” Rais v.
Holder, 768 F.3d 453, 463 (6th Cir. 2014) (quoting Barry v. Mukasey, 524 F.3d 721, 723 (6th Cir.
2008)) (cleaned up).
The BIA declined to reopen the proceedings sua sponte in part because Sow had failed to
demonstrate prima facie eligibility for adjustment of status under 8 U.S.C. § 1255(a), pointing out
that the IJ sustained the charge of inadmissibility under 8 U.S.C. § 1182(a)(6)(A)(i) because she
had not been inspected and admitted or paroled into the United States. Sow argues that we have
jurisdiction to review the BIA’s decision because it was premised on the incorrect legal conclusion
that she was not inspected and admitted or paroled. Contrary to Sow’s argument, her manner of
entry presents a factual issue and not a legal one. See Patel v. Lynch, 830 F.3d 353, 356 (6th Cir.
2016) (reviewing manner-of-entry finding for substantial evidence). And even if Sow presented a
legal challenge to the BIA’s denial of sua sponte reopening, we would still lack jurisdiction to
consider it. See Rais, 768 F.3d at 464 (holding that, because “the BIA’s exercise of its sua sponte
authority is not subject to judicial review, the panel lacks jurisdiction over [the] petition even if it
alleges constitutional claims or questions of law”). Sow’s reliance on Guerrero-Lasprilla v. Barr,
140 S. Ct. 1062 (2020), is misplaced because that case did not involve a request for sua sponte
reopening.
For these reasons, we DENY in part and DISMISS in part Sow’s petition for review.
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