Alhaji Sillah v. William Barr

FILED NOT FOR PUBLICATION DEC 4 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ALHAJI SILLAH, No. 18-71473 Petitioner, Agency No. A038-904-184 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 18, 2020** Phoenix, Arizona Before: BYBEE, MURGUIA, and BADE, Circuit Judges. Alhaji Sillah—a native and citizen of Sierra Leone—petitions for review of the Board of Immigration Appeals’ (BIA) denial of his special motion to reopen deportation proceedings, which sought relief under former § 212(c) of the Immigration and Nationality Act (INA). The deadline for Sillah to seek relief * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). under § 212(c) was April 26, 2005, which he missed by several years. See 8 C.F.R. § 1003.44(h). Sillah challenges the filing deadline, arguing that it is an arbitrary and capricious exercise of the Department of Justice’s rule-making authority. Alternatively, Sillah contends that the filing deadline should have been equitably tolled because he diligently pursued relief. We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D). We review the BIA’s denial of a motion to reopen for abuse of discretion and will only grant a petition for review if the BIA “acted arbitrarily, irrationally, or contrary to law.” Martinez-Hernandez v. Holder, 778 F.3d 1086, 1088 (9th Cir. 2015) (internal quotation marks and citation omitted). We deny the petition. 1. The BIA did not abuse its discretion in denying Sillah’s special motion to reopen. In Luna v. Holder, we held that the filing deadline at 8 C.F.R. § 1003.44(h) is a “proper procedural rule” that deserves deference. 659 F.3d 753, 759–60 (9th Cir. 2011). Luna remains good law in the face of Judulang v. Holder, 565 U.S. 42 (2011). Judulang evaluated the substantive requirements for eligibility under § 212(c), and did not consider the filing deadline. 565 U.S. at 49, 53. And even if Judulang applied here, the filing deadline would still be valid because the Executive Office for Immigration Review (EOIR) provided “a reasoned explanation” for imposing the deadline. Id. at 45. The EOIR explained 2 that the filing deadline would afford aliens an opportunity to seek relief under § 212(c) and promote finality in their immigration proceedings. See Section 212(c) Relief for Aliens with Certain Criminal Convictions Before April 1, 1997, 67 Fed. Reg. 52,627, 52,628 (Aug. 13, 2002). Further, the filing deadline did not eliminate Sillah’s opportunity to seek relief. It “simply established a time frame” for him to do so. Luna, 659 F.3d at 760. Thus, the EOIR’s imposition of a filing deadline fell within the reasonable rule-making authority of the Attorney General. Id. Moreover, the filing deadline does not impermissibly distinguish between aliens based on when they are placed in removal proceedings. Admittedly, an alien ...

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