Karim Daoud Mahmoud Salem v. Attorney General United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-2099
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KARIM DAOUD MAHMOUD SALEM,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
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On Petition for Review of a Decision
of the Board of Immigration Appeals
(Agency No. A098-493-273)
Immigration Judge: Mirlande Tadal
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Submitted Under Third Circuit L.A.R. 34.1(a)
on March 15, 2022
Before: JORDAN, KRAUSE, and PORTER, Circuit Judges
(Filed: March 18, 2022)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
KRAUSE, Circuit Judge.
Petitioner Karim Ahmed Daoud Mahmoud Salem, a native and citizen of Egypt,
petitions for review of a decision by the Board of Immigration Appeals (“BIA”) denying
his motion to reopen removal proceedings. For the reasons set forth below, we will deny
the petition.
I. DISCUSSION1
Salem contends that the BIA erred in declining (1) to excuse his non-compliance
with the requirements of 8 U.S.C. § 1229a(c)(7) in view of his claim of ineffective
assistance of counsel (IAC); (2) to reopen his case sua sponte; and (3) to dismiss the case
for lack of jurisdiction based on a defective Notice to Appear (NTA) under Pereira v.
Sessions, 138 S. Ct. 2105 (2018). None of these arguments is persuasive.
First, Salem argues that the BIA erred in denying his motion to reopen as time-
and number-barred because, although it was a successive motion to reopen2 and was filed
1
The BIA had jurisdiction under 8 C.F.R. §§ 1003.1(b) and 1240.15, and we
exercise jurisdiction under 8 U.S.C. § 1252. We review the BIA’s denial of a motion to
reopen under the highly deferential abuse of discretion standard. See Guo v. Ashcroft, 386
F.3d 556, 562 (3d Cir. 2004). This means we will reverse the BIA’s denial only if it is
“arbitrary, irrational, or contrary to law.” Rranci v. Att’y Gen., 540 F.3d 165, 171 (3d Cir.
2008) (internal quotation omitted). However, questions of law, such as a claim for
ineffective assistance of counsel, are reviewed de novo. See Fadiga v. Att’y Gen., 488 F.3d
142, 153–54 (3d Cir. 2007).
2
Salem filed two motions prior to this one. The first, filed on August 9, 2010, was
styled as a motion to reopen, but the BIA construed it as a motion to reconsider because it
presented no new facts or evidence but instead argued only that the Board erred in its prior
decision. The second, which he filed on February 25, 2011, was conversely labeled a
motion to reconsider, but the Board construed it as a motion to reopen because it sought to
introduce new evidence. It is immaterial for purposes of this appeal whether we consider
2
many years after the 90-day deadline, see 8 U.S.C. § 1229a(c)(7), equitable tolling was
warranted in view of the alleged ineffective assistance of his prior counsel. Specifically,
he contends that he was prejudiced by prior counsel’s failure to communicate the
consequences of the voluntary departure order entered against him and to advise him of
the steps he could take to challenge that order, and that he could not reasonably discover
that prejudice until 2019, when his new counsel explained “the extent of the damage.”
Pet’r’s Br. 30.
Salem is right that the time limit for filing a motion to reopen may be subject to
equitable tolling.3 See Alzaarir v. Att’y Gen., 639 F.3d 86, 90 (3d Cir. 2011). But to
show that equitable tolling is warranted based on ineffective assistance of counsel, a
petitioner must both substantiate his IAC claim and demonstrate that he exercised due
diligence over the entire period for which tolling is desired, including “both the period of
time before the ineffective assistance of counsel was or should have been discovered and
the period from that point until the motion to reopen is filed.” Id. (internal quotation
omitted). Salem failed to make that showing here.
In particular, although Salem asserts that he “has taken diligent steps to contest his
removal” for the entirety of the tolling period, Pet’r’s Br. at 33, he does not explain what
the instant motion to be Salem’s second or third because our analysis would be the same
in either case.
3
“We have not issued a precedential opinion deciding whether numerical limits on
motions to reopen may be equitably tolled.” Luntungan v. Att’y Gen., 449 F.3d 551, 557
(3d Cir. 2006). We need not address that issue here because Salem is not entitled to
equitable tolling in any event.
3
actions, if any, he took between February 2013, when United States Citizenship and
Immigration Services (“USCIS”) revoked the form I-130 visa petition that his U.S.
citizen wife filed on his behalf, and August 2018, when his wife filed another I-130
petition.4 Salem argues that the BIA should have excused his inaction because “[i]t ha[d]
been [his] understanding that [his prior] attorney had filed the appeal and that the
decision [requiring voluntary departure] had been revoked” until he hired new counsel in
2019 and discovered prior counsel’s mistakes. AR 161. Yet Salem acknowledges that,
as early as February 2013, he and his wife knew that USCIS had decided to revoke his
wife’s previously-approved I-130 petition due to their “fail[ure] to overcome derogatory
information” previously raised in a notice of intent to revoke and that they had not had
the opportunity to address that derogatory information because “Petitioner’s prior counsel
[had] failed to file a response.” Pet’r’s Br. 34. Despite that knowledge, however, Salem
and his wife inexplicably waited over five years to file a new I-130 petition and hire a
new lawyer. Considering that delay, the BIA did not err in determining that Salem had
not demonstrated the due diligence required for equitable tolling. See Mahmood v.
Gonzales, 427 F.3d 248, 252–53 (3d Cir. 2005) (finding a lack of due diligence based on
a far shorter “period[] of unaccounted-for delay”).
4
As we affirm the BIA on this claim for lack of diligence, we have no occasion to
address Salem’s arguments concerning the Board’s finding that he failed to substantiate his
underlying IAC claim or the Immigration Judge’s (“IJ”) conclusion that did not comply
with the procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). In
any event, the BIA did not rely on the IJ’s Lozada finding, as it vacated the IJ’s decision
for lack of jurisdiction, see infra, and assumed that Salem had complied with Lozada.
4
Second, Salem asserts that the BIA erred when it failed to reopen his proceedings
sua sponte pursuant to 8 C.F.R. § 1003.2(a), citing legal and factual errors in the
Immigration Judge’s (“IJ”) analysis. Although we typically lack jurisdiction to review
the BIA’s decision not to reopen a case sua sponte, “we may exercise jurisdiction to the
limited extent of recognizing when the BIA has relied on an incorrect legal premise.”
Pllumi v. Att’y Gen., 642 F.3d 155, 160 (3d Cir. 2011). Here, when Salem appealed the
instant motion to the BIA, the Board vacated the IJ’s decision on the ground that the IJ
did not have jurisdiction and considered Salem’s motion as if it had been properly filed
with the BIA in the first instance. Thus, the BIA’s analysis was untainted by any
purported errors in the IJ’s decision. Because Salem has not identified any legal errors in
the BIA’s own analysis, we have no jurisdiction to review its decision to deny sua sponte
reopening. See id.Third and finally, Salem argues that the BIA should have dismissed his case for
lack of jurisdiction because the NTA he received was defective under Pereira v. Sessions,
138 S. Ct. 2105 (2018), as it did not include the time and date on which the proceedings
would be held, as required by 8 U.S.C. § 1229(a). This argument is foreclosed by our
decision in Chavez-Chilel v. Attorney General, in which we held that failure to include
the information required by § 1229(a) does not require termination of the immigration
proceedings and thus is not a jurisdictional defect. 20 F.4th 138, 142–43 (3d Cir. 2021).
In sum, Salem has failed to establish error on the part of the BIA and is therefore
not entitled to reopening.
5
II. CONCLUSION
For the foregoing reasons, we will deny the petition for review.
6