Jose L. Salgado-Escamilla v. U.S. Attorney General

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[DO NOT PUBLISH]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.