Souleymane Diallo v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13015
Non-Argument Calendar
____________________
SOULEYMANE DIALLO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A079-059-186
____________________
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2 Opinion of the Court 20-13015
Before GRANT, L UCK , and LAGOA , Circuit Judges.
PER CURIAM:
Fourteen years after his removal proceedings had ended,
Souleymane Diallo, a Senegalese national, asked to reopen them so
that he could apply for cancellation of removal. In his motion,
Diallo argued that the Supreme Court’s decision in
Pereira v.
Sessions justified giving him a second—and belated—chance to
seek that relief. An immigration judge denied his motion, and the
Board of Immigration Appeals agreed. So do we. Although recent
Supreme Court decisions mean that Diallo might be eligible for
cancellation of removal, they do not excuse his delay in moving to
reopen his proceedings. We therefore deny his petition.
I.
In 1999 Diallo entered the United States on a four-month
tourist visa—and stayed long after that visa had expired. Four years
later, the Department of Homeland Security apprehended Diallo
and served him with a Notice to Appear that charged him with
overstaying his visa.
See 8 U.S.C. § 1227(a)(1)(B). The Notice to
Appear also told him that he needed to attend removal proceedings
in Atlanta at a date and time “to be set.” In August 2003, the Atlanta
Immigration Court sent to Diallo a Notice of Hearing informing
him that his removal hearing would occur at 9:00 a.m. on March 4,
2004. Diallo attended that hearing and was granted voluntary
departure, a form of discretionary relief that allowed him “to
voluntarily leave the country” at his own expense by a set date:
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20-13015 Opinion of the Court 3
here, June 2, 2004.
Id. § 1229c(a)(1);
Blanc v. U.S. Att’y Gen., 996
F.3d 1274, 1278 (11th Cir. 2021).
Once again Diallo did not leave on time. He stayed in the
United States for over a decade, neither running afoul of
immigration authorities nor obtaining a right to remain. Then in
2018—more than fourteen years after his removal proceedings had
ended—he moved to reopen them so that he could apply for
cancellation of removal.
Cancellation of removal allows an otherwise removable
person to remain in the United States.
See Barton v. Barr, 140 S.
Ct. 1442, 1445 (2020). A noncitizen is eligible for this relief if he
meets four statutory requirements, one of which is that he must
have been physically present in the United States continuously
over the ten years preceding his application.
See 8 U.S.C.
§ 1229b(b)(1). Under the Immigration and Nationality Act’s “stop-
time rule,” a noncitizen stops accruing continuous physical
presence when he “is served a notice to appear.”
Id. § 1229b(d)(1);
Pereira v. Sessions, 138 S. Ct. 2105, 2109 (2018).
By 2018, circumstances had changed in a way that
strengthened Diallo’s claim for cancellation. For one thing, he had
lived in the United States longer; in 2004 Diallo had lived in the
country for only five years. For another, ten years had elapsed
since the June 2004 deadline for Diallo’s voluntary departure from
the country. (His failure to depart by then had made him ineligible
for cancellation for the ten years that followed.
See 8 U.S.C
.
§ 1229c(d)(1)(B).) And, most important of all, in 2018 the Court
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4 Opinion of the Court 20-13015
held in
Pereira that a Notice to Appear omitting the hearing time
“does not trigger the ‘stop-time rule.’” 138 S. Ct. at 2113–14.
Diallo’s Notice to Appear lacked that information. If nothing else
triggered the stop-time rule, then, he had been accruing
continuous physical presence in the United States since 1999.
Diallo thus believed that he now qualified for cancellation of
removal, and asked an immigration judge to reopen his
proceedings so that he could obtain this relief. But he had missed
long ago the Immigration and Nationality Act’s ninety-day
deadline for filing a motion to reopen. 8 U.S.C. § 1229a(c)(7)(C)(i).
So he also asked the IJ to reopen his proceedings sua sponte.
The IJ declined both requests. On appeal, the Board agreed.
It noted that Diallo’s motion to reopen was untimely, but rejected
the motion on the merits because Diallo could not make a prima
facie case for cancellation of removal.
See Bing Quan Lin v. U.S.
Att’y Gen., 881 F.3d 860, 873 (11th Cir. 2018). The Board reasoned
that the Notice of Hearing had cured any defect in Diallo’s Notice
to Appear and, upon its service in August 2003, stopped him from
accruing physical presence in the United States. The Board added
that it would not reopen his case sua sponte, even if he were
eligible, because the “accrual of equities in the United States, or
becoming prima facie eligible for relief many years after having
been ordered removed, is not an ‘exceptional situation’ warranting
the exercise of sua sponte discretion.” This petition followed.
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20-13015 Opinion of the Court 5
II.
Here, the Board did not expressly adopt the IJ’s reasoning,
so we review only its decision.
Zhang v. U.S. Att’y Gen., 572 F.3d
1316, 1319 (11th Cir. 2009). We lack jurisdiction to review its
refusal to reopen Diallo’s case sua sponte and thus limit our review
to the Board’s denial of his motion to reopen.
See Lenis v. U.S.
Att’y Gen., 525 F.3d 1291, 1294 (11th Cir. 2008). Although we
review that decision for an abuse of discretion, we review any
underlying legal conclusions de novo.
See Li v. U.S. Att’y Gen.,
488 F.3d 1371, 1374 (11th Cir. 2007).
III.
Diallo primarily attacks the Board’s conclusion that the
August 2003 Notice of Hearing could cure the defective Notice to
Appear and trigger the stop-time rule.1 While his petition was
pending, the Supreme Court rejected the Board’s theory. In
Niz-Chavez v. Garland, the Court held that only a single document
with all the requisite charging and calendaring information counts
as “a notice to appear” that stops a person from accruing physical
presence.
See 141 S. Ct. 1474, 1486 (2021). We therefore must
disagree with the Board’s reason for deeming Diallo ineligible for
cancellation.
1 Both here and before the Board, Diallo also argued that the IJ lacked
jurisdiction over his removal proceedings because his Notice to Appear was
defective. But he concedes that this Court rejected his argument in
Perez-Sanchez v. U.S. Attorney General, 935 F.3d 1148, 1157 (11th Cir. 2019).
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6 Opinion of the Court 20-13015
Diallo says that we should stop our analysis here, grant his
petition, and remand this case to the Board. But we need not
remand if the answer to a legal question undecided below would
render any remand futile.
See Calle v. U.S. Att’y Gen., 504 F.3d
1324, 1330 (11th Cir. 2007). That question here is whether, as
Diallo contends, a change in the interpretation of the governing
law justifies equitable tolling of a filing deadline.2 We have held
that it does not.
See Outler v. United States, 485 F.3d 1273, 1281–82
(11th Cir. 2007). Diallo’s motion to reopen therefore is time
barred, and remand is futile here.
His petition is DENIED.
2 Diallo relies on
Bowen v. City of New York to contend that the practice of
sending incomplete notices was a “systematic procedural irregularity” that
precluded him from filing his motion on time. 476 U.S. 467, 481 (1986). Unlike
in
Bowen, however, the government here did not engage in “secretive
conduct” that prevented Diallo “from knowing of a violation” of his rights.
Id.
Rather, the government openly sent incomplete notices to appear and
followed up with the hearing time—a practice that immigrants challenged
(albeit with limited success) before
Pereira.
See, e.g.,
Matter of Camarillo, 25
I. & N. Dec. 644, 645 (BIA 2011). The circumstance Diallo uses to argue for
equitable tolling thus is not some clandestine procedural irregularity, but
rather a change in how courts interpreted the applicable law.
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