Dani Lahoud Joumaa v. ALBERTO GONZALES, Attorney General of the United States

United States Court of Appeals
For the First Circuit
No. 05-2266
DANI LAHOUD JOUMAA,
Petitioner,
v.
ALBERTO GONZALES,
Attorney General of the United States,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Lynch, and Howard,
Circuit Judges.
Derege B. Demissie and Demissie & Associates on brief for
petitioner.
William C. Erb, Jr., Attorney, Office of Immigration
Litigation, Civil Division, United States Department of Justice,
Peter D. Keisler, Assistant Attorney General, Civil Division, and
Anthony W. Norwood, Senior Litigation Counsel, on brief for
respondent.
May 5, 2006

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LYNCH, Circuit Judge. On September 7, 2004, this court
denied on the merits the petition of Dani Lahoud Joumaa, a native
and citizen of Lebanon, for review of a final order of removal by
the Board of Immigration Appeals (BIA), dated September 10, 2003.
See Joumaa v. Ashcroft, 111 F. App'x 15 (1st Cir. 2004)
(unpublished decision). Joumaa, who had entered the United States
on December 4, 2000 as a transit visitor without a visa, had
originally been ordered removed on February 5, 2002 after an
Immigration Judge (IJ) denied his claims for asylum, withholding of
removal, and protection under the Convention Against Torture. The
IJ found that Joumaa was not credible and had failed to establish
eligibility for the types of relief he had requested.
Joumaa is back again before this court, this time on
petition for review of a July 19, 2005 denial by the BIA of his
belated motion to reopen his removal proceedings to adjust his
immigration status. Joumaa based the motion to reopen on this
court's decision in Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005),
which was issued after his initial petition was denied and which
invalidated one of the regulations that the IJ had invoked in
finding him to be ineligible for adjustment of status. See id. at
36 (holding that former 8 C.F.R. § 245.1(c)(8), now 8 C.F.R.
§ 1245.1(c)(8), which barred paroled aliens in removal proceedings
from applying for adjustment of status, was "invalid as
inconsistent with 8 U.S.C. § 1255(a)"). Joumaa failed to file the

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motion to reopen within the ninety-day period required by 8 U.S.C.
§ 1229a(c)(7)(C)(i).
The BIA accordingly denied the motion as untimely. In
doing so, it also addressed the Succar claim and found that
decision inapplicable on two grounds. First, it noted that the IJ
had provided an alternative reason why Joumaa could not adjust
status: Joumaa arrived in the United States under the transit
without a visa procedure, which provided an independent ground for
his ineligibility to adjust status. See 8 U.S.C. § 1255(c)
(deeming "[a]ny alien who entered the United States in transit
without a visa" ineligible to apply for adjustment of status); 8
C.F.R. § 1245.1(b)(1) (same). Second, the BIA observed that in
this case, unlike in Succar, the petitioner filed his motion to
reopen long after the BIA had already issued a final administrative
order of removal and this court had already denied his appeal
therefrom.
The parties dispute whether the normal abuse of
discretion standard of review for denials of motions to reopen
applies, see Roberts v. Gonzales, 422 F.3d 33, 35 (1st Cir. 2005)
("[W]e review the BIA's denial of a motion to reopen based on
timeliness grounds under a highly deferential abuse of discretion
standard."), or whether this case presents a pure issue of law to
be reviewed de novo. We see no issue of law.

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The petition for review fails on the basis of the first
ground stated by the BIA. The motion to reopen was untimely,
pursuant to 8 U.S.C. § 1229a(c)(7)(C)(i). That statute provides
that "[e]xcept as provided in this subparagraph, the motion to
reopen shall be filed within 90 days of the date of entry of a
final administrative order of removal." Id.; see also 8 C.F.R.
§ 1003.2(c)(2) ("[A]n alien may file only one motion to reopen
removal proceedings . . . and that motion must be filed no later
than 90 days after the date on which the final administrative
decision was rendered in the proceeding sought to be reopened.").
Congress has created particular exceptions to the ninety-day rule,
none of which apply here. See 8 U.S.C. § 1229a(c)(7)(C)(ii), (iv);
see also 8 C.F.R. § 1003.2(c)(2), (3); id. § 1003.23(b)(4)(iii)(A),
(D); id. § 1003.23(b)(4)(iv). Congress could have provided an
exception for a claim that is based on a new decision of law issued
after the ninety-day period has expired. In other contexts it has:
for example, Congress has provided certain habeas petitioners the
ability to assert claims based on subsequent constitutional
decisions of the Supreme Court that have been made retroactive.
See 28 U.S.C. § 2244(d)(1)(C) (so providing for prisoners in state
custody); see also id. § 2255 (similarly providing for prisoners in
federal custody). It has chosen not to make any type of exception
that would be applicable here, and there are obvious reasons for
that choice.

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This is not to say that the BIA could not have chosen
here to reopen, but only that nothing compelled it to do so.
Indeed, the BIA need not have addressed Joumaa's Succar claim at
all. Although the BIA did do so, whether it is correct or not is
irrelevant. It gave a reasoned response in denying the motion on
ground that it was untimely.
As a last-ditch effort, Joumaa criticizes the BIA for not
equitably tolling the ninety-day limit. We need not reach the
issue of whether equitable tolling is even available to excuse a
late filing in the immigration context. See Boakai v. Gonzales,
No. 05-1961, 2006 WL 1101616, at *4 n.2 (1st Cir. April 27, 2006);
Chen v. Gonzales, 415 F.3d 151, 154 n.3 (1st Cir. 2005) (noting
that this question was left open by Jobe v. INS, 238 F.3d 96 (1st
Cir. 2001) (en banc), and declining to resolve it). Joumaa did not
argue equitable tolling to the BIA and therefore failed to exhaust
his administrative remedies. We lack jurisdiction to entertain the
claim. See 8 U.S.C. § 1252(d)(1) ("A court may review a final
order of removal only if . . . the alien has exhausted all
administrative remedies available to the alien as of
right . . . ."); see also Olujoke v. Gonzales, 411 F.3d 16, 22-23
(1st Cir. 2005).
The petition for review is denied.

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