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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10323
Non-Argument Calendar
____________________
JOSE L. SALGADO-ESCAMILLA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A089-787-399
____________________
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21-10323 Opinion of the Court 2
Before JILL PRYOR, LUCK, and TJOFLAT, Circuit Judges.
PER CURIAM:
Jose Salgado-Escamilla (“Salgado-Escamilla”), a native and
citizen of Mexico, seeks review of a Board of Immigration Appeals’
(BIA) order denying his motion to reopen his removal proceedings.
On appeal, Salgado argues that the BIA abused its discretion in
denying his motion to reopen as untimely and number-barred.
Salgado-Escamilla also argues that the BIA failed to give reasoned
consideration to his claim for equitable tolling based on his
allegation that he received ineffective assistance of counsel at his
merits hearing. Finally, Salgado-Escamilla argues that the BIA
abused its discretion in failing to give reasoned consideration to his
request to sua sponte reopen his removal proceedings.
I.
Salgado-Escamilla is a native and citizen of Mexico who
illegally entered the United States at some point in time. On March
1, 2015, a Notice to Appear was issued charging Salgado-Escamilla
as removable pursuant to INA § 212(a)(6)(A)(i),
8 U.S.C. §
1182(a)(6)(A)(i), and INA § 212(a)(7)(A)(i)(I),
8 U.S.C. §
1182(a)(7)(A)(i)(I). On March 18, 2015, through his then counsel,
Elizabeth Bryan, Salgado-Escamilla conceded that he was an illegal
alien and that he was removable as charged. Four months later,
and now represented by Charles Trulock (“Trulock”), Salgado-
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21-10323 Opinion of the Court 3
Escamilla filed an application for cancellation of removal under
INA § 240A(b)(1).
To be eligible for cancellation of removal under § 240A(b)(1)
of the INA, an individual must establish (1) that he has been
physically present in the United States for a continuous period of
not less than 10 years; (2) has been a person of good moral
character during such period; (3) has not been convicted of an
offense under Section 212(a)(2), 237(a)(2), or 237(a)(3) of the Act,
and (4) that his removal would result in exceptional and extremely
unusual hardship to a spouse, parent, or child who is a citizen of
the United States or an alien admitted for lawful permanent
residence.
Although the Immigration Judge (the “IJ”) found Salgado-
Escamilla met the first three requirements for eligibility, the IJ
found that he had failed to establish that his removal would result
in an exceptional and extremely unusual hardship to his only
qualifying relative: his eight-year-old son. Salgado-Escamilla
testified that, were he to be deported, he would take his son to
Mexico with him and that this would be a hardship to the child.
The IJ, however, found no evidence in the record to suggest that
the move to Mexico would work an exceptional and extremely
unusual hardship to the child: the child spoke and understood
Spanish, was doing well in school, and did not suffer from any
disabilities or physical health issues that would make moving a
challenge. Accordingly, Salgado-Escamilla was ordered removed.
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21-10323 Opinion of the Court 4
Salgado-Escamilla appealed the decision of the IJ to the BIA.
Salgado-Escamilla argued that Trulock had failed to properly
represent him before the IJ but provided no evidence to support his
claim of ineffective assistance of counsel. After reviewing the
record, the BIA found that Salgado-Escamilla had failed to show
that his son would suffer an exceptional and unusual hardship were
Salgado-Escamilla to be deported. Additionally, the BIA found that
Salgado-Escamilla had failed to demonstrate ineffective assistance
of counsel because he had failed to comply with the Matter of
Lozada procedural requirements1 for making such a claim. The
BIA therefore dismissed the appeal on March 30th, 2018. Salgado-
Escamilla did not file a petition for review following the Board’s
decision.
On October 5, 2018, Salgado-Escamilla filed a motion to
reopen. He once again argued that Trulock had failed to
adequately represent him at his removal hearing, but this time
included the necessary affidavits and information required under
Matter of Lozada.
1 To perfect an ineffective assistance of counsel claim, an individual (1) must
provide an affidavit setting forth in detail the agreement that was entered into
with counsel with respect to the actions to be taken and what representations
counsel did or did not make to the individual in this regard; (2) must provide
the counsel whose integrity or competence is being impugned with notice of
the allegations leveled against her and be given an opportunity to respond; (3)
must note whether a complaint has been filed with the appropriate
disciplinary authorities and if not, why not. Matter of Lozada,
19 I. & N. Dec.
637, 639 (BIA 1988).
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21-10323 Opinion of the Court 5
On February 18, 2020, the BIA denied the motion to reopen.
The BIA gave two reasons for its decision. First, the BIA found the
motion to reopen to be untimely. Although a motion to reopen
must be filed no later than 90 days after the final administrative
order is entered, Salgado-Escamilla waited six months before filing
his motion to reopen and offered no explanation for the delay.
Second, the BIA found even if the motion were not untimely,
Salgado-Escamilla had failed to show that he sought to introduce
material evidence that was unavailable and undiscoverable at the
time of his removal hearing. That is, Salgado-Escamilla provided
no explanation for why he had failed to comply with the
evidentiary requirements of Matter of Lozada at his removal
hearing.
Salgado-Escamilla filed a second motion to reopen on
August 20, 2020. He repeated his argument that Trulock had failed
to provide effective assistance of counsel. He then argued that the
filing deadline should be equitably tolled. Finally, he requested
that the BIA reopen his case sua sponte.
On January 13, 2021, the BIA denied Salgado-Escamilla’s
second motion to reopen. The BIA found that the motion was both
untimely and number-barred and that no exception to the filing
deadlines applied. The BIA also found no evidence suggesting “an
exceptional situation [that would] warrant the exercise of [its]
limited sua sponte authority.”
Salgado-Escamilla now appeals the denial of his second
motion to reopen and argues (1) the BIA abused its discretion in
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21-10323 Opinion of the Court 6
denying his motion to reopen as untimely and number-barred; (2)
the BIA failed to give reasoned consideration to his claim for
equitable tolling based on his allegation that he received ineffective
assistance of counsel at his merits hearing; (3) the BIA abused its
discretion in failing to give reasoned consideration to his request to
sua sponte reopen his removal proceedings.2
II.
We review the denial of a motion to reopen immigration
proceedings for an abuse of discretion; our review is limited to
determining whether the BIA exercised its discretion in an arbitrary
or capricious manner. Jiang v. U.S. Att’y Gen.,
568 F.3d 1252, 1256
(11th Cir. 2009). The petitioner bears a heavy burden in proving
arbitrariness or capriciousness because motions to reopen in the
2 On May 20, 2021, Salgado-Escamilla submitted a letter to the Court, citing
Niz-Chavez v. Garland,
141 S. Ct. 1474 (2021). Salgado-Escamilla notes that
Niz-Chavez held that a Notice to Appear which does not contain the time and
place of initial proceedings is not sufficient to trigger the stop-time rule set
forth in the Illegal Immigration Reform and Immigrant Responsibility Act of
1996. The stop-time rule provides that the period of continuous presence
“shall be deemed to end . . . when the alien is served a notice to appear” in a
removal proceeding under
8 U.S.C. § 1229(a). 8 U.S.C. § 1229b(d)(1). Salgado-
Escamilla alleges that he received a defective Notice to Appear (i.e., one
without the date and time of the hearing) and that, as a result of the Court’s
holding in Niz-Chavez, the removal proceedings against him are defective and
should be terminated. Niz-Chavez, however, does not affect our analysis in
this case. The Court’s decision in Niz-Chavez focused on “[w]hat qualifie[d] as
a notice to appear sufficient to trigger the time-stop rule.” Niz-Chavez, 141 S.
Ct. at 1479. The time-stop rule is not at issue in this case, as Salgado-Escamilla
has shown he has lived in the U.S. continuously for at least ten years.
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21-10323 Opinion of the Court 7
context of removal proceedings are particularly disfavored. Zhang
v. U.S. Att’y Gen.,
572 F.3d 1316, 1319 (11th Cir. 2009) (citing INS
v. Doherty,
502 U.S. 314, 323,
112 S. Ct. 719, 724 (1992)).
We review de novo alleged legal errors, 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) (citing Perez-
Guerrero v. U.S. Att’y Gen.,
717 F.3d 1224, 1230–31 (11th Cir.
2013)).
III.
A.
An alien may file one motion to reopen within ninety days
of the date of the final order of removal.
8 U.S.C. § 1229(a)(c)(7);
8
C.F.R. § 1003.2(c). The Board entered the final administrative
order of removal with respect to Salgado-Escamilla on March 30,
2018. 3 Thus, Salgado-Escamilla had until June 28, 2018, to file his
motion to reopen. Salgado-Escamilla, however, did not file a
motion to reopen until October 5, 2018, nearly six months later.
He filed a second motion to reopen—the subject of this appeal—in
3 Salgado-Escamilla seems to argue that he can file a motion to reopen after
each ruling by the BIA. We have held, however, that while the numerical
limit does not limit an alien to only one motion to reopen during the entire
removal proceedings, it does apply to each decision by the BIA that an alien is
removable. See Montana Cisneros v. U.S. Att’y. Gen.,
514 F.3d 1224, 1228
(11th Cir. 2008) (allowing a motion to reopen for each decision of
removability). Both of Salgado-Escamilla’s motions concern the same order
of removability and so the numerical limit does apply.
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21-10323 Opinion of the Court 8
August of 2020, more than two years after the final order of
removal. Clearly, the Board did not abuse its discretion in finding
that Salgado-Escamilla’s second motion to reopen was both
untimely and number-barred.
B.
The 90-day deadline for a motion to reopen is a non-
jurisdictional claim-processing rule and is subject to equitable
tolling. Avila-Santoyo v. U.S. Att’y Gen.,
713 F.3d 1357, 1359 (11th
Cir. 2013). Equitable tolling of a time deadline generally requires a
showing that the litigant “(1) . . . has been pursuing his rights
diligently and (2) that some extraordinary circumstances stood in
his way.” Pace v. DiGuglielmo,
544 U.S. 408, 418,
125 S. Ct. 1807,
1814 (2005) (citing Irwin v. Dep’t of Veterans Affs.,
498 U.S. 89, 96,
111 S. Ct. 453, 457–58 (1990)).
Salgado-Escamilla argues that the BIA abused its discretion
by failing to rule on whether equitable tolling was proper in this
case. The BIA, however, found that Salgado-Escamilla “had not
shown that any exception to the filing deadline applies or should
be applied in his case.” In doing so, the BIA necessarily rejected
any equitable tolling argument Salgado-Escamilla raised.
Furthermore, even if the BIA did fail to properly consider
the equitable tolling argument, any failure to do so was harmless
because the BIA denied Salgado-Escamilla’s motion on the
alternative ground that the evidence Salgado-Escamilla brought
was previously available. A motion to reopen must be
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21-10323 Opinion of the Court 9
accompanied by evidence that was not available and could not
have been discovered or produced at the previous hearing.
8 C.F.R.
§ 1003.2(c)(1). Here, Salgado-Escamilla raised his ineffective
assistance of counsel claim in both his initial appeal and his first
motion to reopen. As the BIA noted in its order, it “is unclear how
the evidence submitted and the arguments raised in the current
motion were not available and could not have been discovered or
presented at the former hearing.” Nor does Salgado-Escamilla
dispute the Board’s conclusion that he failed to demonstrate that
the evidence was new and previously unavailable. 4
Thus, even if the BIA did not provide reasoned
consideration to Salgado-Escamilla’s equitable tolling argument,
any failure to do so was harmless because the Board was correct in
concluding – in the alternative – that Salgado-Escamilla had failed
to meet § 1003.2(c)(1)’s previously unavailable requirement.
C.
This Court lacks jurisdiction to review the BIA’s decision not
to reopen proceedings on its own motion. Lenis v. U.S. Att’y Gen.,
525 F.3d 1291, 1292–93 (11th Cir. 2008). Salgado-Escamilla,
4Salgado-Escamilla instead argues that the previous availability of evidence is
not a proper basis to deny a motion to reopen based on ineffective assistance
of counsel. Salgado-Escamilla, however, cites no authority from this Court
supporting this proposition and the law he cites from other circuits either does
not support his argument (Osei v. I.N.S.,
305 F.3d 1205, 1208–09 (10th Cir.
2002)) or is not precedential (Sene v. Gonzales,
453 F.3d 383, 388 (6th Cir.
2006) (Clay, J., dissenting)).
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21-10323 Opinion of the Court 10
however, argues that we do have jurisdiction to review
constitutional claims related to the BIA’s refusal to exercise its sua
sponte power. 5 He argues that the Board “did not address his
request for sua sponte reopening” and therefore violated his right
to due process under the Fifth Amendment. While Salgado-
Escamilla may be right that we have jurisdiction to consider
constitutional claims related to the BIA’s refusal to reopen
proceedings, the record makes clear that no constitutional
violation occurred here. Procedural due process claims must assert
a deprivation of a constitutionally protected liberty or property
interest. Bing Quan Lin v. U.S. Att’y Gen.,
881 F.3d 860, 868 (11th
Cir. 2018). There is “no constitutionally protected interest in
purely discretionary forms of relief”—and this includes motions to
reopen. Scheerer v. U.S. Att’y Gen.,
513 F.3d 1244, 1253 (11th Cir.
2008). 6 Thus, we lack jurisdiction to review the Board’s refusal to
reopen the removal proceedings sua sponte.
5 Salgado-Escamilla grounds his argument in footnote 7 of our opinion in
Lenis, where we noted “in passing, that an appellate court may have
jurisdiction over constitutional claims related to the BIA’s decision not to
exercise its sua sponte power.” Lenis,
525 F.3d at 1294 n.7. Because no
constitutional claim was presented in Lenis, however, we did not decide
whether we in fact had such power.
6 Even if an individual did have a constitutionally protected interest in a
motion to reopen, Salgado-Escamilla’s reporting of the record is just plainly
incorrect. The BIA did in fact address Salgado-Escamilla’s request for sua
sponte reopening and explained its reasoning for declining to reopen his case:
Salgado-Escamilla’s motion “[did] not demonstrate an exceptional situation to
warrant the exercise of our limited sua sponte authority.”
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IV.
As to the claims properly before this Court, we find nothing
to indicate that the BIA abused its discretion or demonstrated a lack
of reasoned consideration.
PETITION DENIED in part and DISMISSED in part.
