Alhaji Sillah v. William Barr ( 2020 )

FILED
NOT FOR PUBLICATION
DEC 4 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALHAJI SILLAH, No. 18-71473
Petitioner, Agency No. A038-904-184
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 18, 2020**
Phoenix, Arizona
Before: BYBEE, MURGUIA, and BADE, Circuit Judges.
Alhaji Sillah—a native and citizen of Sierra Leone—petitions for review of
the Board of Immigration Appeals’ (BIA) denial of his special motion to reopen
deportation proceedings, which sought relief under former § 212(c) of the
Immigration and Nationality Act (INA). The deadline for Sillah to seek relief
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under § 212(c) was April 26, 2005, which he missed by several years. See 8 C.F.R.
§ 1003.44(h). Sillah challenges the filing deadline, arguing that it is an arbitrary
and capricious exercise of the Department of Justice’s rule-making authority.
Alternatively, Sillah contends that the filing deadline should have been equitably
tolled because he diligently pursued relief. We have jurisdiction under 8 U.S.C.
§ 1252(a)(2)(D). We review the BIA’s denial of a motion to reopen for abuse of
discretion and will only grant a petition for review if the BIA “acted arbitrarily,
irrationally, or contrary to law.” Martinez-Hernandez v. Holder, 778 F.3d 1086,
1088 (9th Cir. 2015) (internal quotation marks and citation omitted). We deny the
petition.
1. The BIA did not abuse its discretion in denying Sillah’s special
motion to reopen. In Luna v. Holder, we held that the filing deadline at 8 C.F.R.
§ 1003.44(h) is a “proper procedural rule” that deserves deference. 659 F.3d 753,
759–60 (9th Cir. 2011). Luna remains good law in the face of Judulang v. Holder,
565 U.S. 42 (2011). Judulang evaluated the substantive requirements for
eligibility under § 212(c), and did not consider the filing deadline. 565 U.S. at 49,
53. And even if Judulang applied here, the filing deadline would still be valid
because the Executive Office for Immigration Review (EOIR) provided “a
reasoned explanation” for imposing the deadline. Id. at 45. The EOIR explained
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that the filing deadline would afford aliens an opportunity to seek relief under
§ 212(c) and promote finality in their immigration proceedings. See Section 212(c)
Relief for Aliens with Certain Criminal Convictions Before April 1, 1997, 67 Fed.
Reg. 52,627, 52,628 (Aug. 13, 2002). Further, the filing deadline did not eliminate
Sillah’s opportunity to seek relief. It “simply established a time frame” for him to
do so. Luna, 659 F.3d at 760. Thus, the EOIR’s imposition of a filing deadline
fell within the reasonable rule-making authority of the Attorney General. Id.Moreover, the filing deadline does not impermissibly distinguish between
aliens based on when they are placed in removal proceedings. Admittedly, an alien
placed in removal proceedings after the April 26, 2005 deadline could seek relief
under § 212(c) after the deadline, while an alien placed in removal proceedings
before the deadline could not. Cf. Cardenas-Delgado v. Holder, 720 F.3d 1111,
1113–14 (9th Cir. 2013) (alien placed in removal proceedings in 2006 was eligible
to seek relief under § 212(c)); 8 C.F.R. § 1212.3(e). But to the extent that such a
distinction is arbitrary, filing deadlines are “inherently arbitrary.” United States v.
Boyle, 469 U.S. 241, 249 (1985). And though the deadline “operate[d] harshly”
against Sillah, that is not a sufficient reason to eliminate the deadline. See United
States v. Locke, 471 U.S. 84, 101 (1985). The BIA’s conclusion that Sillah’s
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special motion to reopen was untimely under 8 C.F.R. § 1003.44(h) was not an
abuse of discretion.
2. Next, the BIA reasonably denied Sillah’s request to equitably toll the
filing deadline. To warrant equitable tolling, Sillah must demonstrate that his
failure to timely file was beyond his control despite diligently pursuing his rights.
See Smith v. Davis, 953 F.3d 582, 597–98 (9th Cir. 2020) (en banc). Sillah claims
that he diligently pursued his rights by asking Immigrations and Customs
Enforcement (ICE) officers during his annual ICE check-ins whether any change in
the law could save him from removal. But there is no evidence that ICE officers
were aware of Sillah’s eligibility to seek relief under § 212(c) or that they were
qualified to give the type of legal advice Sillah sought.
This is not a case of a petitioner receiving bad legal advice from an attorney.
See Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (“We cannot penalize
individuals . . . for reasonably relying on the advice of counsel, even if that counsel
turns out to have been incompetent . . . .”). Sillah’s annual interactions with ICE
were limited to “ensuring that [he] complied with his order of supervision.” Those
check-ins did not involve an in-depth review of his removal proceedings.
Meanwhile, Sillah had ample opportunity to consult an attorney after being found
to be removable in June 1996 but failed to do so until December 2017. The BIA
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reasonably determined that Sillah did not demonstrate the necessary diligence to
toll the filing deadline.
PETITION DENIED. Sillah’s accompanying motion for stay of removal is
DENIED AS MOOT.
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