United States Court of Appeals For the First Circuit

No. 19-1283

MOHAMED ABDELRHMAN DAOUD,

Petitioner,

v.

WILLIAM P. BARR,

UNITED STATES ATTORNEY GENERAL,

Respondent.

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

Before

Howard, Chief Judge, Lynch and Kayatta, Circuit Judges.

Aimee Leah Mayer-Salins, with whom Fragomen, Del Rey, Bernsen & Loewy, LLP and Catholic Legal Immigration Network, Inc., were on brief, for petitioner. Trina Realmuto, Kristin Macleod-Ball, Emma Winger, and Philip L. Torrey on brief for the American Immigration Council and the Harvard Immigration and Refugee Clinical Program, amici curiae. Elizabeth Fitzgerald-Sambou, with whom Andrew B. Insenga, Trial Attorney, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Joseph H. Hunt, Assistant Attorney General, Civil Division, and Kiley Kane, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent. January 28, 2020 LYNCH, Circuit Judge. The Bureau of Immigration Appeals

(BIA), whose 2019 opinion rejecting reopening and reconsideration

of denial of relief is under review, gave two alternative and

independent grounds for its decision. See In Re Mohamed Abdelrhman

Daoud, No. A079-818-142 (B.I.A. Feb. 21, 2019). One ground was

far reaching and affects an entire group of removed persons,

whereas the other was particular to the circumstances of petitioner

Mohamed Abdelrhman Daoud. Daoud, a native and citizen of Sudan,

was removed from the United States in May 2014 after his conviction

for the crime of robbery, and he seeks in his petition to be

brought back so that he may pursue his claims of relief from

removal. We consider only the BIA's alternative, narrower ground

and hold that the limitations in

(a)(2)(C)-(D)

divest us of jurisdiction over the petition.

The petition argues that the BIA erred in three respects:

(1) it failed to consider Daoud's argument that the filing deadline

for his motion to reopen and to reconsider should be equitably

tolled due to his mental illness and post-removal imprisonment in

Sudan; (2) it impermissibly applied a regulation known as the

"post-departure bar,"1

(b)(1); and (3) it

1 The term "post-departure bar" refers to two analogous regulations,

(b)(1) and

(d). We deal here with § 1003.23(b)(1), which applies to motions before the immigration court. Section 1003.2(d) applies to motions before the BIA.

- 3 - improperly denied in its exercise of its discretion his motion to

reopen on its alternate ground.

We do not reach the difficult issue about whether the

BIA is correct in its interpretation under the relevant statutes

of the scope of the regulatory post-departure bar,

(b)(1), as to certain removed aliens. As we discuss

below, we lack jurisdiction to review the BIA's denial of relief

as an exercise of its discretion. Any opinion on the BIA's

interpretation of the regulatory post-departure bar, then, "would

be purely advisory and beyond our authority under Article III."

Ortega v. Holder,

(1st Cir. 2013); see also

Zajanckauskas v. Holder,

(1st Cir. 2010) (applying

a different subsection of 1252(a)(2) to alternate holdings and

stating that "if there are two alternative grounds for a decision

and we lack jurisdiction to review one, it would be beyond our

Article III judicial power to review the other" and that without

the authority "to review the discretionary ground, any opinion of

ours reviewing the nondiscretionary ground could not affect the

final order's validity and so would be advisory only" (alteration

omitted) (quoting Ekasinta v. Gonzales,

(10th

Cir. 2005))). Consequently, we will consider only the alternative,

discretionary holding.

And our review of that discretionary holding leads us to

dismiss the petition on the basis that our jurisdiction is limited

- 4 - to issues of law and constitutional issues by

(a)(2)(C)-(D), and none are presented here.2 See Mehilli v.

Gonzales,

(1st Cir. 2005) ("Under the terms of

[the] limited jurisdictional grant [in

(a)(2)(D)],

'discretionary or factual determinations continue to fall outside

the jurisdiction of the courts of appeals.'" (quoting Vasile v.

Gonzales,

(7th Cir. 2005))). So, we lack

jurisdiction.

I.

A. Original Removal Proceedings

Daoud was admitted to the United States on June 10, 2001

as a refugee from Sudan. On December 14, 2005, he became a lawful

permanent resident. In October 2012, Daoud was convicted of

robbery, N.H. Rev. Stat. ch. 636:1, in New Hampshire state court.

In October 2013, the Department of Homeland Security

(DHS) brought removal proceedings against Daoud by serving him

with a Notice to Appear, charging that he was removable pursuant

to section 237(a)(2)(A)(iii) of the Immigration and Nationality

Act (INA),

(a)(2)(A)(iii). It charged specifically

that Daoud's robbery conviction constituted an aggravated felony

2 The jurisdictional limitations embodied in

(a)(2)(C)-(D) are being reviewed by the Supreme Court this term in both Ovalles v. Barr (18-1015) and Nasrallah v. Barr (18- 1432). Neither of these decisions affects the outcome here, as those cases involve different issues than the issues before us here.

- 5 - under the INA because it met the definitions of a crime of

violence,

§ 1101(a)(43)(F), and a theft offense, id.

§ 1101(a)(43)(G).

In November 2013, Daoud appeared pro se before the

immigration court and requested relief from removal in the forms

of asylum, withholding of removal, and protection under the

Convention Against Torture (CAT). He testified in support of his

applications. On December 12, 2013, the Immigration Judge (IJ)

issued an oral decision denying Daoud's applications for relief

and ordering him removed to Sudan. The IJ's later written

decision, on later motions to reopen and reconsider, is described

below.

As to that original denial of relief, the IJ first

addressed Daoud's competency. Daoud had argued that he suffered

from several mental illnesses but the IJ concluded that Daoud was

competent.3 The IJ noted that Daoud stated he understood the

questions he was asked, gave largely responsive answers, clarified

his responses without difficulty when asked, and had informed the

court that he was not having any physical difficulties.

3 The IJ later corrected the statement made orally that there were no indicia of mental incompetency in the written decision on Daoud's motion to reopen and to reconsider. The IJ noted that "the fact that the Court misspoke during the course of its oral decision is immaterial to its final determination because the Court treated [Daoud] as if he had presented indicia of incompetency and took the appropriate measures."

- 6 - The IJ did not make an adverse credibility finding but

expressed "serious doubts" about Daoud's credibility because of

major inconsistencies between his in-court testimony, and his

refugee documents and I-589 application. The IJ explained that

these doubts were not overcome with reasonably available

corroborating evidence because Daoud had failed to produce any

affidavits or testimony from his family, who lived nearby in New

Hampshire.

Turning to Daoud's applications for relief, the IJ first

held that Daoud's aggravated felony conviction barred his asylum

application. The IJ next denied Daoud's request for withholding

of removal, concluding that Daoud had not met his burden of proving

that he had not been convicted of a "particularly serious crime,"

and this barred withholding of removal relief.

As to protection under the CAT, the IJ concluded that

Daoud had not met his burden of proving he would be subjected "to

torture by, or at the instigation of, or with the consent or

acquiescence of a public official." The IJ stated that even

putting aside concerns about credibility, there was no evidence

that if Daoud were returned to Sudan, he would be "taken into

custody and subjected to torture or killed, as he fears." On

December 12, 2013, the IJ, finding Daoud removable as charged,

ordered him removed to Sudan. Daoud did not take an appeal to the

BIA. Daoud was removed to Sudan in May 2014, after the expiration

- 7 - of the statutory time limits to file a timely motion to reopen or

to reconsider.

B. Motion to Reopen and to Reconsider

On December 8, 2015, some eighteen months after removal,

Daoud, then apparently in Egypt and represented by counsel, filed

a motion to reopen removal proceedings as to his three requests

for relief based on purported changed country conditions in Sudan.

Daoud also characterized his motion as a motion to reconsider the

IJ's conclusions that his robbery conviction constituted an

aggravated felony and that he was competent during his removal

proceedings, from which he had not earlier taken an appeal to the

BIA.

Because his motion was outside the ninety-day deadline

for motions to reopen and the thirty-day deadline for motions to

reconsider, Daoud offered two arguments: (1) the two deadlines

should be equitably tolled; and (2) his motion to reopen fell

within the exception to the deadline for changed country

conditions. See 8 U.S.C. § 1229a(c)(7)(C)(ii).

In support of his equitable tolling argument, Daoud

argued that he faced two extraordinary circumstances that

prevented him from filing either on time. He argued that upon his

removal to Sudan some 140 days after the IJ's decision, he was

imprisoned in Sudan, and he suffered from severe mental illness.

He simply asserted that he acted with due diligence in pursuing

- 8 - his motion by seeking assistance in filing his motion "[w]ithin

weeks" of his arrival in Egypt after his escape from Sudan.

As to changed country conditions, Daoud introduced some

evidence that he had been imprisoned and tortured by Sudanese

officials. He argued that this evidence was material and

previously unavailable, satisfying the statutory changed country

conditions exception to the ninety-day filing deadline.

On February 9, 2016, the IJ issued a written decision

denying Daoud's motion. The IJ concluded that she did not need to

reach the post-departure bar issue because even if the bar did not

apply, Daoud's motion would fail in any event. As to Daoud's

changed country conditions argument, the IJ concluded that, even

accepting Daoud's version of events as true, he was not eligible

for the exception to the filing deadline. The IJ stated that even

if Daoud were detained and tortured, these harms were "based upon

a change in [Daoud's] personal circumstances brought about by his

criminal convictions and subsequent removal to Sudan, which is not

a basis for reopening proceedings." Further, the IJ concluded

that Daoud "ha[d] not established that conditions ha[d] materially

changed [in Sudan] since the Court first considered his asylum

application."

The IJ declined to equitably toll the filing deadline

for Daoud's motion to reopen because Daoud had not shown he

exercised due diligence. The IJ noted that even assuming Daoud

- 9 - could not have filed his motion while detained in Sudan, Daoud had

(1) provided no evidence of how much time had elapsed between his

escape from Sudanese prison, his arrival in Egypt, and his filing

of the motion to reopen, and (2) he had not described in his own

declaration any of the "steps he took, or obstacles that he faced,

in pursuing his [m]otion."

The IJ specifically addressed Daoud's assertions that in

her earlier oral decision, she had erred in assessing his

competency and declining to apply safeguards. The IJ noted that

although she had erroneously stated there were no indicia of

incompetency, she had nevertheless proceeded as if Daoud had

presented indicia of incompetency and "conducted the necessary

competency assessment." Specifically, the IJ stated that given

Daoud's testimony and demeanor over the course of the December 12

hearing, she found that Daoud's testimony was "fully coherent,

responsive to the questions asked of him, and that his answers

were appropriate in all pertinent respects." Further, when Daoud

testified about his mental health, the IJ asked Daoud follow up

questions about the nature of his mental state and ensured that he

understood the questions he was asked. The IJ concluded that she

had properly determined that Daoud was competent, so no safeguards

were needed.

Viewing Daoud's motion as a motion to reconsider, the IJ

declined to equitably toll the deadline for the same reasons as

- 10 - for the denial of the motion to reopen. Accordingly, the IJ denied

Daoud's dual motion. The IJ also declined to reopen or reconsider

sua sponte, explaining that Daoud had not made a "prima facie

showing that he is eligible for the relief he seeks," had not

established "exceptional circumstances warrant[ing] reopening,"

and that "serious doubts" had been raised about his credibility."

C. BIA Decision

Daoud appealed the IJ's decision to the BIA. Daoud's

briefing to the BIA challenged the IJ's decisions not to equitably

toll the filing deadlines and that he had not satisfied the changed

country conditions exception to the ninety-day filing deadline for

motions to reopen.4 He also argued that the IJ erred in declining

to reopen sua sponte, and in "declining to reopen on the basis

that relief would not be granted in the exercise of discretion."

On February 21, 2019, the BIA dismissed Daoud's appeal.

As to Daoud's motion to reopen, the BIA provided two independent

and alternative rationales for affirming. It held that the post-

departure bar, which provides that "[a] motion to reopen . . .

shall not be made by or on behalf of a person who is the subject

of removal, deportation, or exclusion proceedings subsequent to

4 Daoud later argued to the BIA that the IJ relied on the regulatory post-departure bar in denying his motion to reopen and to reconsider, but this characterization of the IJ opinion is not correct. The IJ discussed the post-departure bar but did not rely on it.

- 11 - his or her departure from the United States,"

(b)(1), prevented Daoud from filing his motion to reopen

under its interpretation of 8 U.S.C. § 1229a(c)(7)(C)(i)-(ii).

The BIA independently and alternatively held, even if the post-

departure bar did not apply, that it denied the motion in the

exercise of discretion.

As said, we review only the alternative holding. As to

its alternative holding, the BIA stated that even if the post-

departure bar did not prevent Daoud's motion to reopen, it would

deny the motion in the exercise of its discretion because "the

weight of the evidence . . . would not justify reopening of an

asylum, withholding of removal, or [CAT] case, from abroad, years

after the final administrative order was entered, after

proceedings on the merits of [Daoud's] case in the first instance

have already concluded with an order of removal." The BIA noted

that this was "particularly so in light of the significant passage

of time since the order of removal in 2013 and [Daoud's] serious

criminal history."

As to equitable tolling, the BIA described in detail the

argument that Daoud had presented to the IJ, stating that Daoud

"argues that to the extent the [ninety]-day filing deadline

applies, it should be equitably tolled because of the effects of

his mental illness and his detention upon returning to Sudan, which

prevented him from timely filing the motion." The BIA then

- 12 - summarized the IJ's conclusion that Daoud "did not establish that

the filing deadline should be equitably tolled" because he "did

not establish that he exercised due diligence in pursuing his

motion."

In its discussion of the motion to reopen, the BIA also

made references to timeliness. The BIA specifically stated that

Daoud "had until March 12, 2014, to file a timely motion to reopen

within the applicable deadline." The BIA then noted that Daoud

was not physically removed to Sudan until May 2014, which was about

two months after the ninety-day deadline to file a motion to reopen

had expired. The BIA also repeatedly referred to Daoud's motion

to reopen as "untimely."

Looking at the motion as one to reconsider, the BIA

explicitly affirmed the IJ's denial of the motion as untimely.

The BIA noted that Daoud's motion was "filed almost [two] years

after the final administrative order" and found that there was "no

basis to conclude the [thirty]-day filing deadline does not apply

or that sua sponte reconsideration is warranted."

Daoud timely petitioned for review to this court.

II.

Our jurisdiction is limited by statute: "no court shall

have jurisdiction to review any final order of removal against an

alien who is removable by reason of having committed a criminal

offense covered in . . . [§] 1227(a)(2)(A)(iii)." 8 U.S.C.

- 13 - § 1252(a)(2)(C); see also Larngar v. Holder,

(1st

Cir. 2009) (stating that this court "lack[s] jurisdiction to review

any final order of removal against an alien who is removable

because he committed a 'covered' criminal offense," which includes

aggravated felonies (quoting

(a)(2)(C))). The

government argues that this jurisdictional bar applies, and Daoud

does not offer any argument contesting this conclusion.

Under this bar, our jurisdiction is limited to review of

"constitutional claims or questions of law."

(a)(2)(D); see also Larngar,

. As said, we

hold that no questions of law or constitutional claims are

presented by Daoud's challenge to the BIA's alternative

discretionary holding.5 See Mejia-Rodriguez v. Holder,

(1st Cir. 2009) (applying

(a)(2)(C) and

noting that "had any discretionary decision been made on the facts

of [petitioner's] case, this would not be subject to judicial

review, given the restraints of

(a)(2)").

5 Daoud's case is unlike Larngar v. Holder,

(1st Cir. 2009), where the court determined that the issue of whether the BIA erred when analyzing if the petitioner's claim involved a change in personal circumstances or a change in country circumstances was reviewable, despite the applicability of

(a)(2)(C).

. The Larngar court was concerned that the BIA had not applied a "properly framed burden of proof."

(emphasis omitted). Here, Daoud's assertions of error do not similarly challenge the BIA's analysis for improperly framing the burden of proof.

- 14 - We reject Daoud's effort to avoid the jurisdictional bar

by presenting what he claims are two issues of law. He first

argues the BIA lacked the authority to deny his motion to reopen

on discretionary grounds because, in his view, such discretion

would conflict with the nondiscretionary nature of the motion to

reopen statute, 8 U.S.C. § 1229a(c)(7), and because withholding of

removal and CAT protection are nondiscretionary forms of relief.6

He similarly argued in the sua sponte reopening section of his

briefing before the BIA that the IJ's statement -- that it did

"not find there to be a reasonable likelihood that relief will now

be granted in the exercise of discretion" -- could "only refer[]

to [his] application for asylum . . . as that is the only

discretionary relief he requested."

Daoud's challenge to the BIA's discretion is not before

us because he has not presented us with a question of law capable

of our review. He seeks to challenge the BIA's decision to deny

his motion to reopen, which it explicitly stated that it took in

the exercise of its discretion. As noted by the IJ in her decision

6 Daoud also attempts to avoid the jurisdictional bar by arguing that because, in his view, the BIA lacks discretion under the statute, our standard of review should be de novo. But, as the government points out, whether or not the underlying issue involves "discretion" does not dictate the standard of review. See, e.g., Amanullah v. Nelson,

(1st Cir. 1987) (applying a "facially legitimate and bona fide reason" standard, rather than "abuse of discretion," for reviewing the Attorney General's discretionary decision to deny parole).

- 15 - of February 9, 2016, an IJ "has discretion to deny a motion to

reopen even if the moving party has established a prima facie case

for relief."

(b)(3). The BIA also has such

regulatory discretion under

(a). Referencing the

"significant passage of time" and other factors, the BIA denied

the motion.

While Daoud seeks to repackage his argument on appeal as

a challenge to the source of this discretion, he did not contend

before the BIA that the BIA could not rely on the regulations

identified by the IJ and the corollary BIA regulation. His

suggestion to the BIA that withholding of removal and CAT

protection are "[non]discretionary" was not sufficient to exhaust

this issue either. While he now argues that the BIA lacks

discretion to deny motions to reopen to apply for such relief,

before the BIA he only noted that asylum is a "discretionary" form

of such relief. And "arguments not raised before the BIA are

waived due to a failure to exhaust administrative remedies." Shah

v. Holder,

(1st Cir. 2014) (quoting Molina De

Massenet v. Gonzales,

(1st Cir. 2007)).7

7 Further, he argues his failure to exhaust should be excused because the BIA implicitly ruled against him in asserting it had discretionary jurisdiction. See Velerio-Ramirez v. Lynch,

(1st Cir. 2015). He misreads Velerio-Ramirez and it is factually distinguishable. In that case, the IJ applied the wrong law to the petitioner's case.

. The petitioner appealed to the BIA, and the BIA raised the issue of what law

- 16 - Second, he argues he still has an argument that the BIA

failed to consider equitable tolling. Daoud's argument fails for

two reasons. First, we have held that "the decision to apply

equitable tolling is a judgment call," meaning the BIA's

discretionary decision to deny relief eliminates any need for it

to consider equitable tolling. Gyamfi v. Whitaker,

(1st Cir. 2019). Second, the very premise of Daoud's argument

is unsupported; the BIA did consider, and reject, the application

of equitable tolling to this case. It explicitly described Daoud's

equitable tolling argument and the IJ's reasoning for rejecting

it.8 The BIA also noted that the deadline had expired even before

Daoud was removed to Sudan and repeatedly described his motion as

"untimely." Indeed, the BIA concluded that it saw "no basis" to

extend the thirty-day deadline for the motion to reconsider.

Daoud's arguments for equitably tolling the deadline for both

should apply sua sponte, making a determination that the relevant analysis would be the same under either possible alternative. Id. at 117. The petitioner then raised this same issue in her petition for review, and we determined that our review was not precluded due to failure to exhaust because the BIA itself raised the issue. Id. But here, the BIA made no explicit determination as to the scope of its discretionary authority. It simply exercised its discretion, which Daoud had not challenged after the IJ had identified it. 8 We assume, but do not decide, that equitable tolling is available to Daoud to toll the filing deadline. See Bolieiro v. Holder,

(1st Cir. 2013) ("[W]e have not yet decided whether equitable tolling applies to the statute's ninety-day deadline, despite multiple opportunities to do so.").

- 17 - motions were the same and the IJ applied her reasoning on the

motion to reopen to the motion to reconsider. So, as the

government rightly states, the BIA did consider, and reject, the

argument and there would be no point in a remand.

The BIA made it evident in its opinion that it was

rejecting the argument. See Sulaiman v. Gonzales,

(1st Cir. 2005) (stating that while the IJ "did not use the

phrase 'past persecution[,]' [i]t is nevertheless evident from her

opinion that she found no indication that Sulaiman's experiences

in Syria amounted to persecution");

("We do not require

an IJ to intone any magic words before we will review her

determination."). As such, there is no legal issue for us to

review.

Daoud's petition for review is dismissed.

- 18 -