Mahbuber Rahman v. U.S. Atty. General

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-17124 JULY 5, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________

BIA No. A79-056-556

MAHBUBER RAHMAN,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________

(July 5, 2006)

Before DUBINA, HULL and FAY, Circuit Judges.

PER CURIAM:
 Mahbuber Rahman, a native and citizen of Bangladesh, petitions this Court

for review of the Bureau of Immigration Appeals’ (“BIA”) order denying his

motion to reopen or reconsider. On appeal, Rahman challenges the denial of his

motion as erroneous on numerous grounds,1 and also argues that, in denying the

motion, the BIA violated his due process and equal protection rights. The

government responds that, under Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir.

1999), we lack jurisdiction to review either the BIA’s decision not to exercise its

sua sponte authority to reopen or reconsider or Rahman’s constitutional challenges.

For the reasons set forth more fully below, we deny the petition.

On April 23, 2003, Rahman was issued a notice to appear, charging him

with removability under § 237(a)(1)(B) of the Immigration and Nationality Act

(“INA”), for remaining in the United States for a time longer than permitted. In a

motion dated September 11, 2003, Rahman moved to continue his case on the

ground that he had a pending I-140 immigrant petition. On September 25, 2003,

the Immigration Judge (“IJ”) denied Rahman’s motion for a continuance, finding

that he failed to show good cause for the continuance, and that a continuance in the

exercise of discretion was not warranted. At a hearing on October 2, 2003,

1
Rahman’s initial brief on appeal challenged the denial of the motion to reopen, but
made no argument that the denial of reconsideration was erroneous. Issues not raised in an
initial brief are abandoned. Al Najjar v. Ashcroft, 257 F.3d 1262, 1282 n.12 (11th Cir. 2001).
Assuming, arguendo, that the issue is not abandoned, we find no abuse of discretion in the BIA’s
denial of the motion to reconsider for the reasons set forth below.
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Rahman admitted the allegations in the notice to appear and conceded

deportability. Rahman also renewed his motion to continue, which the IJ denied.

The IJ ordered Rahman removed to Bangladesh, and Rahman appealed the IJ’s

denial of a continuance to the BIA. On April 28, 2005, the BIA adopted and

affirmed the IJ’s decision and the IJ’s denial of Rahman’s motion for a

continuance. On September 19, 2005, Rahman filed a motion to reopen and

reconsider the BIA’s decision, seeking to reopen the proceedings to allow

adjudication of his application for adjustment of status before the IJ.

During this period of time, the following developments relevant to

Rahman’s application for an adjustment of status occurred. On April 29, 2003, the

Department of Labor granted an application for employment certification. An I-

140 petition for an alien worker, dated August 7, 2003, was submitted on

Rahman’s behalf. A notification that the I-140 petition submitted on his behalf had

been approved was issued on September 11, 2005. Rahman applied for adjustment

of status on September 19, 2005.

The BIA denied Rahman’s motion to reopen or reconsider. The BIA found

that both the motion to reopen and the motion to reconsider were untimely, and

that the motion to reopen did not fall within any of the enumerated exceptions to

the time limitation. The BIA further found that Rahman failed to establish

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exceptional circumstances which warranted its exercise of its sua sponte authority

to reopen or reconsider the proceedings.

We review the denial of a motion to reopen for abuse of discretion, and we

are limited to “determining whether there has been an exercise of administrative

discretion and whether the matter of exercise has been arbitrary or capricious.” Ali

v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006) (citation and quotation

marks omitted).2 Motions to reconsider are also reviewed for abuse of discretion.

Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321, 1341 (11th Cir. 2003). In ruling on a

motion to reopen or reconsider, the BIA cannot ignore its own regulations. See

Acosta-Montero v. I.N.S, 62 F.3d 1347, 1351 (11th Cir. 1995). Rahman’s claims

that the BIA’s actions violated his due process and equal protection rights are

reviewed de novo. Ali, 443 F.3d at 808.

An alien may file one motion to reconsider and, generally, one motion to

reopen removal proceedings. 8 U.S.C. § 1229a(c)(6)(A), (7)(A); 8 C.F.R.

§ 1003.2(b)(2), (c)(2). A motion to reconsider must be filed within 30 days after

entry of the final administrative order of removal. 8 U.S.C. § 1229a(c)(6)(B); 8

C.F.R. § 1003.2(b)(2). Aside from certain exceptions that are inapplicable to this

2
We have implied jurisdiction to consider the BIA’s denial of Rahman’s motion to
reopen under 8 U.S.C. § 1252(a)(1). Ali, 443 F.3d at 808 n.2. Consequently, the jurisdictional
limitations applicable to final orders of removal are also applicable to our review of this motion.
Id.
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case, a motion to reopen must be filed within 90 days of the entry of the final

administrative order of removal. 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R.

§ 1003.2(c)(2)-(3). The 90-day period for filing a motion to reopen is

jurisdictional and mandatory. Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1150 (11th

Cir. 2005). Therefore, it is not subject to equitable tolling. Id. In addition, at any

time, the BIA can reopen or reconsider on its own motion a case in which it has

rendered a decision. 8 C.F.R. § 1003.2(a).

Rahman argues that the BIA lacked the authority to consider his motion to

reopen and should have remanded it to the IJ for consideration. We disagree. The

regulations give the BIA the authority to rule on motions to reopen and reconsider,

and grant the BIA sua sponte authority to reopen or reconsider a case, such as this

one, in which it rendered a decision. 8 C.F.R. §§ 1003.2(a), (i). The BIA’s finding

regarding exceptional circumstances was proper because it was made by the BIA to

determine whether to exercise its discretionary authority to reopen or reconsider

the case. See id. § 1003.2(a). Thus, the BIA was not violating its regulations

because it was not making a factual finding in the course of deciding an appeal

from the IJ’s decision. See 8 C.F.R. § 1003.1(d)(3)(iv).3

3
This section prohibits factfinding by the BIA “in the course of deciding appeals.”

Except for taking administrative notice of commonly known facts such as current
events or the contents of official documents, the Board will not engage in factfinding
in the course of deciding appeals. A party asserting that the Board cannot properly
5
 The BIA did not abuse its discretion in finding that Rahman’s motion was

untimely. Rahman’s motion was filed over four months after the BIA’s April 28,

2005 decision. Because Rahman’s motion to reconsider was filed well after the

30-day filing period, the BIA did not abuse its discretion in finding that Rahman’s

motion to reconsider was untimely. Because Rahman’s motion to reopen was filed

after the 90-day period, and the 90-day requirement is jurisdictional and

mandatory, the BIA did not abuse its discretion in finding that Rahman’s motion to

reopen was untimely.4 Abdi, 430 F.3d at 1150.

While we have jurisdiction to review the BIA’s decision not to exercise its

sua sponte authority to reopen or reconsider, we hold that the BIA did not abuse its

discretion. In Anin, we held that 8 C.F.R. § 3.2(a) (1999), which is now codified at

8 C.F.R. § 1003.2(a), gave the BIA’s “non-reviewable discretion” to determine

whether to reopen a case on its own motion. Anin, 188 F.3d at 1279. Although we

used the phrase “non-reviewable discretion” when referring to our review of the

resolve an appeal without further factfinding must file a motion for remand. If
further factfinding is needed in a particular case, the Board may remand the
proceeding to the immigration judge or, as appropriate, to the Service.

8 C.F.R. § 1003.1(d)(3)(iv) (emphasis added).
4
We lack jurisdiction to consider Rahman’s arguments that his motion was timely
because either the 90-day period should be equitably tolled or “exceptional circumstances”
should affect the 90-day period in which a motion to reopen can be filed because Rahman failed
to raise these claims before the BIA. 8 U.S.C. § 1252(d)(1); Sundar v. I.N.S., 328 F.3d 1320,
1323 (11th Cir. 2003).
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BIA’s exercise of its sua sponte authority to reopen or reconsider, we held that the

denial of Anin’s motion to reopen was not an abuse of discretion. Id. We did not

reach our holding based upon a lack of jurisdiction to review the decision.

Accordingly, we have jurisdiction to review the BIA’s decision not to exercise its

sua sponte discretion, but, under Anin, we find no abuse of that discretion.

In light of the foregoing discussion, the government’s reliance on Anin for

the proposition that we lack jurisdiction to review Rahman’s constitutional claims

is, therefore, misplaced. We next consider the merits of Rahman’s claims.

Aliens present in the United States are entitled to due process under the Fifth

Amendment of the Constitution. Fernandez-Bernal v. U.S. Att’y Gen., 257 F.3d

1304, 1311 (11th Cir. 2001). In order to prevail on due process challenges, an

alien must establish that he was deprived of liberty without due process of law, and

that the alleged errors caused him substantial prejudice. Gonzalez- Oropeza v.

U.S. Att’y Gen., 321 F.3d 1331, 1333 (11th Cir. 2003). Aliens are entitled to due

process of law in deportation proceedings. Reno v. Flores, 507 U.S. 292, 306, 113

S.Ct. 1439, 1449, 123 L.Ed.2d 1 (1993). Due process requires notice and an

opportunity to be heard in removal proceedings. Sebastian-Soler v. U.S. Att’y

Gen., 409 F.3d 1280, 1287 n.14 (11th Cir. 2005), cert. denied, 126 S.Ct. 1662

(2006). However, “aliens do not enjoy a constitutionally protected liberty interest

in a purely discretionary form of relief.” Garcia v. Att’y Gen., 329 F.3d 1217,
7
1224 (11th Cir. 2003). Furthermore, we have found no due process violation in the

BIA’s single member summary affirmance procedure. Mendoza v. U.S. Att’y

Gen., 327 F.3d 1283, 1289 (11th Cir. 2003).

Because the BIA’s discretion to sua sponte reopen or reconsider is so broad

that it is non-reviewable, Anin, 188 F.3d at 1279, Rahman had no protected liberty

interest in having his untimely motion granted by the BIA. Therefore, Rahman

must demonstrate that he was deprived of notice and an opportunity to be heard.

Sebastian-Soler, 409 F.3d at 1287 n.14.

Rahman argues that the issuance of a single member opinion violated his

due process and equal protection rights. The single member summary affirmance

procedure does not violate due process, Mendoza, 327 F.3d at 1289, and the denial

of his motion by a single member of the BIA is not relevant to whether Rahman

had notice and an opportunity to be heard. Because the BIA’s original decision

was also issued by a single member, the motion would be disposed of by a single

member unless that member determines that the motion should be referred to a

three-member panel when warranted under 8 C.F.R. § 1003.1(e)(6). 8 C.F.R.

§ 1003.2(i). Rahman makes no more than a conclusory assertion that disposition

by a three-member panel was warranted. Because Rahman cannot show that the

BIA erred in issuing a single-member order, he cannot show that the BIA’s actions

subjected him to an arbitrary or unreasonable classification in violation of his equal
8
protection rights. See Brooks v. Ashcroft, 283 F.3d 1268, 1274 (11th Cir. 2002)

(“Classifications that distinguish among groups of aliens are subject to rational

basis review, and will be found valid if not arbitrary or unreasonable.”).

The failure of the BIA to address why the 90-day filing period could not be

tolled or why he did not meet an exception to the 90-day rule did not violate

Rahman’s due process rights. It is not relevant to whether Rahman had notice and

an opportunity to be heard. Furthermore, Rahman makes no argument that these

failures caused him substantial prejudice, and it is unclear how he would be

substantially prejudiced when he failed to raise either of these issues before the

BIA.

In light of the foregoing, we deny Rahman’s petition for review.

PETITION DENIED.

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