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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14486
Non-Argument Calendar
____________________
BALDWIN MAYNARD BROWN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A201-581-587
____________________
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2 Opinion of the Court 21-14486
Before LUCK, ANDERSON, and HULL, Circuit Judges.
PER CURIAM:
Baldwin Maynard Brown, proceeding pro se, petitions for
review of the Board of Immigration Appeals’ (“BIA”) decision
denying his motion to reopen his removal proceedings. After
review, we deny in part and dismiss in part Brown’s petition.
I. IMMIGRATION PROCEEDINGS
A. Underlying Removal Proceedings
In November 2013, Brown, a native and citizen of Jamaica,
entered the United States on a six-month tourist visa. In January
2020, Brown was served with a notice to appear, which charged
him with removability under the Immigration and Nationality Act
(“INA”) § 237(a)(1)(B),
8 U.S.C. § 1227(a)(1)(B), for overstaying his
visa.
In March 2020, Brown applied for asylum, withholding of
removal, and relief under the United Nations Convention Against
Torture (“CAT”). Brown claimed that he had experienced
persecution as a member of a particular social group—his family.
Brown also asserted that: (1) he was poisoned and abused in
Jamaica; and (2) he had been a permanent resident in Canada but
was prevented from returning to Canada by unknown individuals.
At the March 25, 2020 merits hearing, Brown testified that:
(1) he could not return to Canada because he was “tortured,” and
gases were pumped into his room; and (2) his family members in
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21-14486 Opinion of the Court 3
Jamaica had abused and poisoned him. At the end of the March 25,
2020 hearing, the IJ denied Brown’s asylum application.
Brown appealed to the BIA, asserting in his brief to the BIA
that his sister had connections in the Jamaican government. On
January 28, 2021, the BIA affirmed the IJ’s decision and dismissed
his appeal. In February 2021, Brown filed a motion to reconsider
with the BIA, which denied Brown’s motion on May 27, 2021.
B. July 2021 Motion to Reopen with the Immigration Court
In July 2021, Brown filed a motion to reopen with the
immigration court. Brown asserted that he had obtained
documents corroborating his statements about the harms that he
had suffered in Canada and his sister’s links to the Jamaican
government.
In August 2021, the IJ denied Brown’s motion to reopen.
The IJ determined that: (1) Brown’s motion to reopen was
untimely; (2) the IJ lacked jurisdiction to consider Brown’s motion
because the BIA, not the IJ, had issued the last decision in his case;
(3) Brown’s motion did not contain new arguments that were not
previously raised in his removal proceedings; and (4) the evidence
Brown attached to his motion did not show his harm was, or would
be, on account of a statutorily protected ground. The IJ found that
sua sponte reopening was unwarranted because Brown had not
demonstrated a “truly exceptional situation.”
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4 Opinion of the Court 21-14486
C. September 2021 Motion to Reopen with the BIA
On September 2, 2021, Brown filed with the BIA a “motion
to accept late-filed motion to reopen.” In this motion, Brown
asserted that: (1) he mistakenly filed his motion to reopen with the
immigration court instead of the BIA, (2) he was unable to correct
this mistake because he was held in quarantine from August 10
through August 26, 2021, and (3) he was unable to access the
internet or a phone during that time. Brown attached a letter from
a homeless shelter stating that he was a resident and was in
quarantine from August 10 through August 26, at which time he
tested negative for COVID-19.
That same day, Brown filed a motion to reopen. Brown’s
motion stated that he had obtained new evidence regarding the
harms he suffered and his sister’s connections to the Jamaican
government.
In support of his motion to reopen, Brown submitted several
exhibits, which included, inter alia: (1) medical records that
purportedly showed the injuries he suffered due to persecution by
Canadians; (2) documents dated from 2012 to 2015 showing that
his sister has held positions in the Jamaican government; and
(3) photographs of his home into which gases were allegedly
pumped. None of this evidence addressed materially changed
country conditions in Jamaica or Canada following Brown’s March
2020 merits hearing.
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21-14486 Opinion of the Court 5
The BIA denied the motion to reopen. The BIA concluded
that his motion was untimely, as his motion was not filed within
90 days of the BIA’s final administrative order. It determined that
Brown had not shown that his motion fell within any exception to
the time limitations or that equitable tolling of the deadline was
warranted.
Next, the BIA concluded that sua sponte reopening was not
appropriate. It observed that Brown’s claims were not supported
by objective evidence showing that he would be eligible for any
form of relief from removal, and that he had “received a full and
fair hearing on his claims.”
II. DISCUSSION
A. General Legal Principles
A nonimmigrant’s motion to reopen removal proceedings
must “state the new facts that will be proven at a hearing to be held
if the motion is granted, and shall be supported by affidavits or
other evidentiary material.” INA § 240(c)(7)(A), (B), 8 U.S.C.
§ 1229a(c)(7)(A), (B).
Generally, a motion to reopen immigration proceedings
must be filed within 90 days of the date of entry of a final
administrative order of removal.1 INA § 240(c)(7)(A), (C), 8 U.S.C.
1We review the denial of a motion to reopen a removal order for an abuse of
discretion, and our review is limited to determining whether the BIA’s exercise
of discretion was arbitrary and capricious. Bing Quan Lin v. U.S. Att’y Gen.,
881 F.3d 860, 872 (11th Cir. 2018).
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6 Opinion of the Court 21-14486
§ 1229a(c)(7)(A), (C). That 90-day deadline does not apply,
however, to motions that seek asylum or withholding of removal
based on changed country conditions in the noncitizen’s country
of removal, “if such evidence is material and was not available and
would not have been discovered or presented at the previous
proceeding.” INA § 240(c)(7)(c)(ii), 8 U.S.C. § 1229a(c)(7)(C)(ii).
Further, the 90-day requirement for filing a motion to
reopen is subject to equitable tolling. Butka v. U.S. Att’y Gen.,
827
F.3d 1278, 1283 (11th Cir. 2016). Equitable tolling “requires a
showing that the litigant (1) has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way.”
Bing Quan Lin v. U.S. Att’y Gen.,
881 F.3d 860, 872 (11th Cir.
2018) (quotation marks and ellipsis omitted). “Ignorance of the law
usually is not a factor that can warrant equitable tolling.”
Wakefield v. R.R. Retirement Bd.,
131 F.3d 967, 970 (11th Cir.
1997); see also Cadet v. Fla. Dep’t of Corr.,
853 F.3d 1216, 1221–22
(11th Cir. 2017) (observing that an attorney’s mistake in calculating
a limitations period did not justify equitable tolling).
The BIA also may sua sponte grant a motion to reopen at
any time if it finds that exceptional circumstances warrant
reopening. Butka,
827 F.3d at 1283;
8 C.F.R. § 1003.2(a). However,
the decision to reopen sua sponte is “committed to agency
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21-14486 Opinion of the Court 7
discretion by law,” and we lack jurisdiction to review it. Lenis v.
U.S. Att’y Gen.,
525 F.3d 1291, 1294 (11th Cir. 2008). 2
To determine whether the agency displays reasoned
consideration, this Court “look[s] only to ensure that the IJ and the
BIA considered the issues raised and announced their decisions in
terms sufficient to enable review.” Indrawati v. U.S. Att’y Gen.,
779 F.3d 1284, 1302 (11th Cir. 2015). Although the IJ and the BIA
must consider all of the evidence submitted, a decision that omits
the discussion of certain pieces of evidence can nonetheless display
reasoned consideration.
Id. 3
B. Brown’s Petition
The BIA did not abuse its discretion in denying Brown’s
motion to reopen as untimely. The 90-day period to file his motion
to reopen began on January 28, 2021, when the BIA issued its final
administrative removal order. See INA § 240(c)(7)(C), 8 U.S.C.
§ 1229a(c)(7)(C). Consequently, Brown’s September 2021 motion
to reopen (and even his July 2021 motion filed incorrectly with the
immigration court) was filed several months after the 90-day
deadline expired on April 28, 2021.
2 ThisCourt reviews de novo its subject matter jurisdiction over a petition for
review. Ruiz v. Gonzales,
479 F.3d 762, 765 (11th Cir. 2007).
3 This Court reviews denovo legal issues, such as whether the agency failed to
give reasoned consideration to an issue. Jeune v. U.S. Att’y Gen.,
810 F.3d 792,
799 (11th Cir. 2016).
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8 Opinion of the Court 21-14486
Brown argues that he is entitled to equitable tolling of the
90-day deadline because (1) he misfiled the motion to reopen in the
immigration court on July 27, 2021, and once he discovered his
error, he could not correct it because he was quarantined due to a
COVID-19 exposure and (2) he assumed the 90-day deadline ran
from the date the BIA denied his motion for reconsideration. We
disagree. First, Brown’s time in quarantine from August 10
through August 26, 2021, did not prevent him from timely filing his
motion to reopen because that motion was already several months
late by August 10, 2021. Second, Brown’s mistaken belief about
when he needed to file his motion to reopen does not support a
claim of equitable tolling. See Wakefield,
131 F.3d at 970; Cadet,
853 F.3d at 1221–22.
We also reject Brown’s contention that the BIA ignored his
evidence submitted with his motion to reopen. To the extent
Brown’s argument relates to the BIA’s decision declining to reopen
his immigration proceedings pursuant to its sua sponte authority,
we lack jurisdiction to review this argument. See Lenis,
525 F.3d
at 1294. 4 In any event, this argument lacks merit. The BIA was not
4 Brown’s December 27, 2021 petition for review in this Court is timely only
as to the BIA’s December 15, 2021 denial of his motion to reopen. Therefore,
to the extent Brown’s petition claims legal error in the IJ’s initial March 25,
2020 denial of his application for relief from removal, the BIA’s January 28,
2021 dismissal of his appeal from that denial, and the BIA’s May 27, 2021 denial
of his motion to reconsider, we lack jurisdiction to review these claims. See
INA § 242(b)(1),
8 U.S.C. § 1252(b)(1) (requiring the petition for review to be
filed within thirty days after the date of the final order of removal); Dakane v.
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21-14486 Opinion of the Court 9
required to expressly address each piece of Brown’s evidence in its
decision, especially when none of this evidence addressed the
timeliness of Brown’s motion to reopen or materially changed
country conditions in Jamaica or Canada. Indeed, much of
Brown’s evidence concerned harms that he allegedly suffered
when he was living in the United States. Under these
circumstances, we are satisfied that the BIA gave reasoned
consideration to Brown’s motion and attached evidence and
announced its decision sufficiently for meaningful appellate
review. See Indrawati,
779 F.3d at 1302.
For all these reasons, we dismiss Brown’s petition for lack of
jurisdiction to the extent he claims the BIA abused its discretion in
declining to sua sponte reopen his immigration proceedings. We
deny his petition to the extent he claims the BIA committed legal
error in denying his September 2021 motion to reopen.
PETITION DENIED IN PART AND DISMISSED IN
PART.
U.S. Att’y Gen.,
399 F.3d 1269, 1272 n.3 (11th Cir. 2005) (concluding that the
statutory period for filing a petition for review is mandatory and jurisdictional
and is not tolled by the filing of a motion to reopen or reconsider); Jaggernauth
v. U.S. Att’y Gen.,
432 F.3d 1346, 1350–51 (11th Cir. 2005) (observing that the
finality of a removal order is unaffected by the filing of a motion for
reconsideration).
