Omar v. Lynch

United States Court of Appeals
For the First Circuit

No. 15-1258

SOHIEL OMAR,

Petitioner,

v.

LORETTA E. LYNCH,*
Attorney General of the United States,

Respondent.

PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Stahl, and Barron,
Circuit Judges.

Linda Kenepaske and Law Offices of Linda Kenepaske, PLLC on
brief for petitioner.
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Civil Division, Cindy S. Ferrier, Assistant Director, and
Lindsay M. Murphy, Trial Attorney, Office of Immigration
Litigation, U.S. Department of Justice, on brief for respondent.

February 25, 2016

* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Loretta E. Lynch has been substituted for former Attorney General
Eric H. Holder, Jr., as the respondent.
 BARRON, Circuit Judge. Sohiel Omar is a native and

citizen of Pakistan. He was ordered removed more than a decade

ago, and he appealed that order to the Board of Immigration Appeals

("BIA") in a timely manner. After that appeal failed, he then

filed a timely motion to reconsider, but the BIA rejected that

motion as well. More than a decade later, Omar filed a second

motion to reconsider. That motion, too, was denied. He now

petitions for review of the BIA's denial of his second motion to

reconsider. We deny the petition for review.

I.

We begin by recounting the somewhat lengthy procedural

history that led to the BIA's ruling that is at issue here. On

January 26, 1998, the former Immigration and Naturalization

Service charged Omar with removability based on a set of 1994

convictions that rendered him an aggravated felon.

At his removal hearing, Omar sought relief under § 212(c)

of the Immigration and Nationality Act of 1952, Pub. L. No. 82-

414, 66 Stat. 163, 187, as amended by Immigration Act of 1990,

§ 511(a), Pub. L. No. 101-649, 104 Stat. 4978, 5052, as amended by

Miscellaneous and Technical Immigration and Naturalization

Amendments of 1991, § 306(a)(10), Pub. L. No. 102-232, 105 Stat.

1733, 1751. Under that provision, the Attorney General had

relatively broad discretion to grant relief to aliens otherwise

deemed inadmissible or removable if they had established a lawful,

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unrelinquished domicile in the United States of seven consecutive

years. Id.

The Immigration Judge ("IJ") rejected Omar's request for

§ 212(c) relief on August 26, 2002. The IJ ruled that the passage

of the Illegal Immigration Reform and Immigrant Responsibility Act

("IIRIRA"), § 304(b), Pub. L. No. 104-208, 110 Stat. 3009-546,

3009-597, in September 1996 barred Omar from obtaining such relief,

notwithstanding that Omar's 1994 convictions pre-dated the

IIRIRA's enactment.

The IJ reasoned that the IIRIRA applied retroactively to

Omar based on the IJ's interpretation of the Supreme Court's

decision in I.N.S. v. St. Cyr, 533 U.S. 289 (2001). There, the

Supreme Court held that the provision of the IIRIRA that eliminated

§ 212(c) relief did not apply retroactively to aliens who, in

reliance on the availability of § 212(c) relief, pleaded guilty

(or nolo contendere) to offenses with admissibility or

removability consequences prior to September 30, 1996. But the IJ

concluded that because Omar's convictions resulted from a

trial -- rather than a plea -- the IIRIRA did, consistent with St.

Cyr, apply retroactively to bar Omar from seeking § 212(c) relief.

Omar timely appealed that ruling to the BIA. He argued,

among other things, that the IJ had misconstrued St. Cyr by not

extending it to apply to convictions rendered after trial. The

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BIA rejected that argument and affirmed the IJ's decision without

opinion in a per curiam order dated January 30, 2003.

Following the BIA's ruling, Omar was removed from the

United States to Ireland on or about February 14, 2003. On

February 27, 2003, Omar filed a timely motion for reconsideration

of the BIA's denial of his appeal.

In his motion to reconsider, Omar reasserted his right

to § 212(c) relief on the basis of St. Cyr. On March 31, 2003,

the BIA denied the motion. The BIA did so summarily, stating that

"it had considered [Omar's] arguments" and "f[ound] no reason to

disturb [its prior] decision." Omar does not appear to have

petitioned this Court for review of either the BIA's denial of his

appeal or of the BIA's denial of his first motion to reconsider.

More than a decade later, however, on August 7, 2014,

Omar filed a second motion to reconsider the BIA's January 2003

removal order. Omar based this second motion to reconsider on the

BIA's decision in Matter of Abdelghany, 26 I. & N. Dec. 254 (BIA

2014).

There, the BIA held -- relying in part on intervening

precedent applying St. Cyr -- that § 212(c) relief was available

to aliens convicted after trial. See id. at 268 ("[W]e are

convinced that Supreme Court and emerging circuit court precedent

has superseded the regulatory prohibition against granting section

212(c) relief under St. Cyr to aliens convicted after trial.").

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Abdelghany instructed immigration judges going forward to "treat

deportable lawful permanent residents convicted after trial no

differently for purposes of section 212(c) eligibility than

deportable lawful permanent residents convicted by means of plea

agreements." Id.

Notwithstanding Abdelghany, the BIA rejected Omar's

second motion to reconsider. The BIA did so on the grounds that

his motion was time- and number-barred under 8 U.S.C.

§ 1229a(c)(5)(B), Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-

593 (1996), and that Omar had failed to show that equitable tolling

of the time and number bars was warranted. See Neves v. Holder,

613 F.3d 30, 36 (1st Cir. 2010) (per curiam) ("The equitable

tolling doctrine extends statutory deadlines in extraordinary

circumstances for parties who were prevented from complying with

them through no fault or lack of diligence of their own.").

Specifically, the BIA held that a change in the law favorable to

petitioner that "occurr[ed] long after the expiration of

[petitioner's] filing deadline d[id] not constitute extraordinary

circumstances justifying equitable tolling."

Omar now seeks review of the BIA's decision.

II.

We review the BIA's denial of a motion to reconsider for

abuse of discretion, assuming without deciding that equitable

tolling is available in this context. See Barrios v. Gonzales,

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136 F. App'x 934, 937 (7th Cir. 2005) (unpublished) (declining to

decide whether motions to reconsider, as distinct from motions to

reopen, are subject to equitable tolling); cf. Mata v. Lynch, 135

S. Ct. 2150, 2155 n.3 (2015); Neves, 613 F.3d at 36 (assuming

without deciding that the time and number limits applicable to

motions to reopen are subject to equitable tolling). A denial of

a motion to reconsider is an abuse of discretion "only when the

'denial was made without a rational explanation, inexplicably

departed from established policies, or rested on an impermissible

basis.'" Bolieiro v. Holder, 731 F.3d 32, 36 (1st Cir. 2013)

(quoting Martinez-Lopez v. Holder, 704 F.3d 169, 172 (1st Cir.

2013)). To prevail on a theory of equitable tolling, an individual

must show "(1) that he has been pursuing his rights diligently,

and (2) that some extraordinary circumstance stood in his way" and

prevented timely filing. Neves, 613 F.3d at 36.1

1 We follow the BIA and the parties in applying the equitable
tolling framework to assess not only whether Omar's second motion
to reconsider is time-barred but also whether it is number-barred.
We question, however, whether equitable tolling is the appropriate
framework for analyzing whether a second motion to reconsider may
be considered, as there is no clock to toll with a number bar.
See 8 U.S.C. § 1229a(c)(6)(A). Accordingly, different
considerations might bear on the question whether an equitable
exception should be recognized to a limitation on the number of
filings an alien may make than would bear on the question whether
a deadline for making a filing should be equitably tolled. Cf.
compare 28 U.S.C. § 2255(h) (setting forth standards for allowing
a "second or successive" federal petition for writ of habeas
corpus), with Holland v. Florida, 560 U.S. 631, 645, 649 (2010)
(setting forth equitable tolling standard for late-filed habeas
petitions).

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 Omar contends that the BIA erred in concluding that the

circumstances of his case were not sufficiently extraordinary to

warrant an equitable exception to the time and number bars

applicable to Omar's motion. And Omar appears to do so by arguing

that the following circumstances, in combination, make his case an

"extraordinary" one: (1) he was effectively denied the opportunity

to file his first motion to reconsider because his removal from

the United States triggered what is known as the "departure bar,"

which putatively stripped the BIA of jurisdiction to consider that

motion at the time that he filed it;2 (2) the BIA denied his legal

argument for § 212(c) relief only via summary rulings; and (3) his

legal argument was ultimately embraced by the BIA in its subsequent

decision in Abdelghany.

We do not agree. In concluding that Omar did not

overcome the time and number bars that Omar concedes would

otherwise apply, the BIA did not abuse its discretion.

First, while Omar suggests that it is inappropriate to

count his first motion to reconsider for number-bar purposes given

the applicability of the departure bar, the record indicates that

the BIA denied Omar's initial motion to reconsider on the merits

2 See 8 C.F.R. § 1003.2(d); Matter of Armendarez-Mendez, 24
I. & N. Dec. 646, 660 (BIA 2008) (affirming the continued validity
of the departure bar). But see Santana v. Holder, 731 F.3d 50, 61
(1st Cir. 2013) (overruling Armendarez-Mendez to the extent that
it interferes with an alien's statutory right to seek reopening of
a final order of removal).

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rather than on departure bar grounds. But, in any event, Omar did

not argue to the BIA in his second motion to reconsider that it

was really his first such motion due to the departure bar. Nor

did he argue that the potential application of the departure bar

to his first motion constitutes an extraordinary circumstance that

should enable him to bring this motion years after the initial one

was denied. As a result, Omar's "departure bar"-based argument

for finding, on equitable tolling grounds, his second motion to

reconsider not to be time- or number-barred is not properly before

us. See Silva v. Gonzales, 463 F.3d 68, 72 (1st Cir. 2006) ("Under

the exhaustion of remedies doctrine, theories insufficiently

developed before the BIA may not be raised before this court.").3

Second, the fact that the BIA denied Omar's legal

arguments through summary means is not itself "extraordinary."

The BIA did address Omar's original appeal claim through its

"affirmance without opinion" procedure, but that procedure is a

permissible one. See 8 C.F.R. 1003.1(e)(4); Albathani v. I.N.S.,

318 F.3d 365, 377-80 (1st Cir. 2003) (holding that the BIA's

affirmance without opinion procedure does not violate principles

of due process or administrative law).

3Omar also argues that he was deprived of due process because
he was denied an opportunity for reconsideration on account of the
departure bar. But that issue, too, is not properly before us, as
Omar failed to raise it before the BIA. See Silva, 463 F.3d at
72.

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 Finally, we are not persuaded by Omar's contention that

because the BIA did eventually adopt the position underlying his

legal claim regarding the availability of § 212(c) relief that he

had unsuccessfully presented to the IJ in 2002 and to the BIA in

2003, he should be able to present that claim again now. The BIA

concluded that its forward-looking re-interpretation of the IIRIRA

in Abdelghany -- based on what the BIA termed "emerging"

precedent -- did not constitute the kind of extraordinary

circumstance that would warrant allowing Omar to file a motion to

reconsider eleven years after the time for filing had passed. In

light of the BIA's interest in finality, we find no abuse of

discretion in that ruling here. Cf. Muyubisnay-Cungachi v. Holder,

734 F.3d 66, 71 (1st Cir. 2013) (noting that motions to reopen

immigration proceedings "are disfavored as contrary to 'the

compelling public interests in finality and the expeditious

processing of proceedings'" (citation omitted)); Whiteside v.

United States, 775 F.3d 180, 186-87 (4th Cir. 2014) (noting in the

habeas context that the interest in finality militates against

construing changes in law as extraordinary for equitable tolling

purposes).4

4We note that in denying Omar's second motion to reconsider,
the BIA expressly declined to reconsider Omar's case sua sponte.
That discretionary decision, however, is one that we have no
jurisdiction to review. See Charuc v. Holder, 737 F.3d 113, 115
(1st Cir. 2013).

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 III.

The petition for review of the BIA's denial of Omar's

second motion to reconsider is DENIED.

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