Case: 17-14552 Date Filed: 05/15/2018 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-14552
Non-Argument Calendar
________________________
Agency No. A072-185-838
SHANEELA MEMON,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(May 15, 2018)
Before MARCUS, WILSON, and ROSENBAUM, Circuit Judges.
PER CURIAM:
Case: 17-14552 Date Filed: 05/15/2018 Page: 2 of 5
Shahneela Memon petitions for review of the Board of Immigration
Appeal’s (BIA) order denying her motion to reconsider its earlier denial of her
motion to reopen her removal proceedings. Memon argues that she was entitled to
equitable tolling on her motion to reopen and that the BIA relied on an incorrect
factual determination, regarding her marriage, in concluding that she was not so
entitled. After a review of the record and the parties’ briefs, we affirm.
Memon, a Pakistani native, arrived in New York without valid entry
documents in February 1992. Three years later, an Immigration Judge (IJ) ordered
her to be excluded and deported based on the fraudulent passport she used to enter
the country. Memon made a motion to reopen her exclusion proceedings and stay
her deportation, which was ultimately denied. Twenty years later, in 2015, she
filed a second motion to reopen her proceedings, this time arguing that the she was
the beneficiary of an approved I-130 petition for an undocumented immigrant
relative (made on her behalf by her husband, who is now a United States citizen)
and could, therefore, apply for adjustment of status. She acknowledged that her
motion to reopen was untimely, but argued that it was subject to equitable tolling
for extraordinary circumstances because she suffered from a mental illness.
The IJ denied the motion, because, among other things, it was both time and
number barred, and because Memon failed to present new, material facts that were
unavailable at the time of her original hearing. She appealed to the BIA, adding
2
Case: 17-14552 Date Filed: 05/15/2018 Page: 3 of 5
the argument that her due process rights were violated because she was prejudiced
by the denial, which she alleged was based on her mental condition. The BIA
affirmed the IJ’s decision and denied her motion to reconsider; she now appeals
that denial.
We review the BIA’s decision to deny a motion to reconsider for an abuse of
discretion, determining “whether the exercise of discretion was arbitrary or
capricious.” Ferreira v. U.S. Att’y Gen., 714 F.3d 1240, 1243 (11th Cir. 2013)
(internal quotation marks omitted). Generally, a petitioner may file only one
motion for reconsideration of any prior decision and only one motion to reopen
removal proceedings. INA § 240(c)(6)(A), 8 U.S.C. § 1229a(c)(6)(A); INA
§ 240(c)(7)(A); 8 U.S.C. § 1229a(c)(7)(A). These motions are subject to 90-day
deadlines that are non-jurisdictional and subject to equitable tolling. Avila-Santoyo
v. U.S. Att’y Gen., 713 F.3d 1357, 1362–64 (11th Cir. 2013) (per curiam).
Moreover, the IJ and the BIA may also exercise discretionary, sua sponte authority
to reopen or reconsider any case regardless of the 90-day deadline. 8 C.F.R. §
1003.2(a). However, a decision based on that discretionary authority is
unreviewable, unless the petitioner raises a constitutional challenge. Butka v. U.S.
Att’y Gen., 827 F.3d 1278, 1283–85 (11th Cir. 2016). Finally, this court may not
review a decision by the BIA if there is an alternative holding that supports
3
Case: 17-14552 Date Filed: 05/15/2018 Page: 4 of 5
dismissal, because such review would amount to rendering an advisory opinion.
Malu v. U.S. Att’y Gen., 764 F.3d 1282, 1290 (11th Cir. 2014).
Here, the BIA did not abuse its discretion in denying Memon’s motion to
reconsider. Memon’s motion was both time and number barred, thus, absent
equitable tolling, we are constrained by statute. See Avila-Santoyo, 713 F.3d at
1362–64. As an initial matter, Memon’s argument that the BIA relied on an
“incorrect factual determination” regarding her marriage is a mischaracterization of
its ruling. Memon claims that the BIA determined that her marriage was an “after
acquired benefit” following her original exclusion order, which she argues is an
erroneous conclusion because she and her husband had been married long before
then. But the “after acquired benefit” the BIA was referring to was her husband
becoming a United States citizen after her original exclusion order, not the
marriage itself.
Thus, Memon’s only other argument could, at best, be construed as a
challenge to the BIA’s determination that she failed to show extraordinary
circumstances to warrant equitable tolling. See Ruiz-Turicos v. Att’y Gen., 717
F.3d 847, 851 (11th Cir. 2013) (explaining that equitable tolling applies when the
petitioner can show that she has pursued her rights diligently and that some
extraordinary circumstance prevented a timely filing). But because the BIA
determined equitable tolling was inapplicable on alternative grounds—not only
4
Case: 17-14552 Date Filed: 05/15/2018 Page: 5 of 5
because of a lack of extraordinary circumstances, but also because of her failure to
exercise due diligence—her petition must be denied under Malu. See 764 F.3d at
1290–91 (barring advisory opinions).
Finally to the extent that Memon also challenges the BIA’s decision
declining to reconsider its decision not to exercise its sua sponte authority to
reopen her proceedings, we lack jurisdiction to review that purely discretionary
claim absent colorable constitutional challenges. See Butka, 827 F.3d at 1283–85.
Thus, in this regard, her petition should be dismissed.
PETITION DISMISSED IN PART, DENIED IN PART.
5
Shaneela Memon v. U.S. Attorney General
Combined Opinion