Marie Francine Eloi v. U.S. Attorney General

USCA11 Case: 19-14785 Date Filed: 07/21/2021 Page: 1 of 13 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 19-14785 Non-Argument Calendar ________________________ Agency No. A078-408-144 MARIE FRANCINE ELOI, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (July 21, 2021) Before BRANCH, LAGOA, and BRASHER, Circuit Judges. PER CURIAM: USCA11 Case: 19-14785 Date Filed: 07/21/2021 Page: 2 of 13 Marie Eloi petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to rescind her removal order entered in absentia and to reopen her removal proceedings to apply for cancellation of removal. Eloi contends that her motion to reopen should not have been deemed time- or number- barred because it was based on the lack of proper notice of her removal proceedings under Pereira v. Sessions, 138 S. Ct. 2105 (2018).1 Alternatively, Eloi argues that she was entitled to equitable tolling because she diligently pursued her immigration matters and Pereira constituted a fundamental change in the law. After careful review, we deny her petition. I. Background Eloi, a native and citizen of Haiti, was apprehended at Miami International Airport when she attempted to enter the United States in September 2000 with a French passport under someone else’s name that she had purchased from another individual. She informed the immigration agent that interviewed her at the airport that she left Haiti because she was being persecuted and that she feared she would “be killed” if she were returned to Haiti. On September 29, 2000, the Immigration and Naturalization Service (“INS”) served Eloi with a notice to appear (“NTA”) 1 In Pereira, the Supreme Court held that a notice to appear that does not specify the time and place of the initial removal proceeding does not qualify as a “notice to appear under section 1229(a)” and therefore does not trigger the stop-time rule for purposes of cancellation of removal. 138 S. Ct. at 2110, 2115. 2 USCA11 Case: 19-14785 Date Filed: 07/21/2021 Page: 3 of 13 charging her with being removable, under 8 U.S.C. § 1182(a)(6)(C)(i), as an alien who by fraud or willful misrepresentation sought to procure admission into the United States, and under 8 U.S.C. § 1182(a)(7)(A)(i)(I), as an immigrant who at the time of application for admission was not in possession of a valid entry document or valid unexpired passport or identity and nationality document. The NTA stated that Eloi should appear before an immigration judge (“IJ”) at a particular location with the time and date to be determined. That same day, the Executive Office of Immigration Review (“EOIR”) served Eloi with a separate notice of hearing that stated that her hearing was scheduled for October 19, 2000, at 1 p.m. Thereafter, on October 5, 2000, the immigration court mailed Eloi another notice of hearing, indicating that her master hearing was scheduled on December 29, 2000. And on December 29, 2000, the immigration court sent her another …

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