Case: 17-11459 Date Filed: 05/10/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-11459 Non-Argument Calendar ________________________
Agency No. A073-555-378
ADEYINKA SALAMI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent. ________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(May 10, 2018)
Before JORDAN, JULIE CARNES, and HULL, Circuit Judges.
PER CURIAM:
Adeyinka Salami seeks review of the Board of Immigration Appeals’
affirmance of an Immigration Judge’s denial of her motion to sua sponte reopen Case: 17-11459 Date Filed: 05/10/2018 Page: 2 of 7
her removal proceedings. We, however, lack jurisdiction to review the BIA’s
decision not to exercise its sua sponte authority to reopen removal proceedings,
and we therefore dismiss Ms. Salami’s petition.
I
Ms. Salami, a native and citizen of Nigeria, entered the United States on or
about July 22, 1983, on a non-immigrant F1 student visa. Ms. Salami had
authorization to remain in the United States until June 13, 1987, but did not depart
the United States by that date. On May 23, 1997, Ms. Salami filed an application
for asylum, which was referred to an IJ for further proceedings. The former
Immigration and Naturalization Service commenced removal proceedings against
her in July 1997 through the issuance of a Notice to Appear. On September 26,
1997, Ms. Salami filed an application for cancellation of removal.
At her merits hearing on June 1, 1999, Ms. Salami withdrew her asylum and
cancellation of removal applications, and requested and was granted pre-hearing
voluntary departure in lieu of deportation. Ms. Salami was ordered to leave the
United States no later than September 29, 1999. As before, however, she did not
depart the country as ordered.
Sixteen years later, on August 18, 2015, Ms. Salami filed a motion to reopen
her removal proceedings. On July 19, 2016, the IJ denied the motion, concluding
that it was untimely, and that Ms. Salami did not present any exceptional
2 Case: 17-11459 Date Filed: 05/10/2018 Page: 3 of 7
circumstances warranting sua sponte reopening. The IJ also construed Ms.
Salami’s motion as perhaps asserting an ineffective assistance of counsel claim,
but rejected the claim because Ms. Salami had failed to comply with the procedural
requirements of Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). On March 6,
2017, the BIA affirmed the IJ’s ruling and dismissed Ms. Salami’s appeal.
II
We review de novo our own subject-matter jurisdiction. See Ruiz v.
Gonzales, 479 F.3d 762, 765 (11th Cir. 2007). When the BIA issues a decision, we
review that decision, “except to the extent that the BIA has expressly adopted the
IJ’s decision;” in that instance, we review both the IJ’s and the BIA’s decisions. Id.
III
An immigration judge may reopen removal proceedings through either
statutory authority or sua sponte authority. Under the Immigration and Nationality
Act, an alien may file one statutory motion to reopen removal proceedings. See 8
U.S.C. § 1229a(c)(7)(A). This motion must be filed within 90 days of the entry of
the final order of removal. See id. at § 1229a(c)(7)(C)(i). Here, Ms. Salami filed
her motion to reopen her removal proceedings more than 16 years after the
3 Case: 17-11459 Date Filed: 05/10/2018 Page: 4 of 7
removal order became final, and the IJ correctly concluded the motion was
untimely, under its statutory authority, to reopen her proceedings. 1
An IJ may reopen removal proceedings under her sua sponte authority at any
time, see 8 C.F.R. § 1003.2(a), and Butka v. U.S. Att’y Gen., 827 F.3d 1278, 1283
(11th Cir. 2016), but the BIA has held that this authority is “an extraordinary
remedy reserved for truly exceptional situations.” In re G—D—, 22 I&N Dec.
1132, 1134 (BIA 1999). “The power to reopen on our own motion is not meant to
be used as a general cure for filing defects or to otherwise circumvent the
regulations, where enforcing them might result in hardship.” In re J—J—, 21 I&N
Dec. 976, 984 (BIA 1997). Here, the IJ concluded, and the BIA agreed, that Ms.
Salami failed to prove any such exceptional circumstances.
We generally lack jurisdiction to review any decision of an IJ or the BIA
when declining to exercise their discretionary sua sponte authority to reopen
removal proceedings. See Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1294 (11th Cir.
2008) (“[T]he BIA’s decision whether to reopen proceedings on its own motion
pursuant to 8 C.F.R. § 1003.2(a) is committed to agency discretion by law. We are,
therefore, constrained to conclude that we lack jurisdiction to review the BIA’s
decision.”). This is because “under the Administrative Procedure Act, judicial
1 The 90-day deadline is subject to equitable tolling. See Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d 1357, 1362-64 (11th Cir. 2013) (en banc). Ms. Salami has provided no justification for equitable tolling, and did not appeal the IJ’s statutory untimeliness determination. 4 Case: 17-11459 Date Filed: 05/10/2018 Page: 5 of 7
review is not available when agency action is committed to agency discretion by
law.” Id. at 1293 (internal quotations omitted). See also 5 U.S.C. § 701(a)(2). The
Supreme Court has stated that “review is not to be had if the statute is drawn so
that a court would have no meaningful standard against which to judge the
agency’s exercise of discretion.” Heckler v. Chaney, 470 U.S. 821, 830 (1985).
And in Lenis, we held that the statutes and regulations at issue here provided no
such meaningful standard. See Lenis, 525 F.3d at 1293 (“[N]o statute expressly
authorizes the BIA to reopen cases sua sponte; rather, the regulation at issue
derives from a statute that grants general authority over immigration and
nationalization matters to the Attorney General, and sets no standard for the
Attorney General’s decision-making in this context.”).
One exception to this rule, however, may allow jurisdiction to review these
discretionary decisions. “[A]n appellate court may have jurisdiction over
constitutional claims related to the BIA’s decision not to exercise its sua sponte
power.” Id. at 1294 n.7 (emphasis added). We have not yet answered this open
question. See Butka, 827 F.3d at 1284.
Ms. Salami, however, does not raise any constitutional claims relating to the
decision not to sua sponte reopen her removal proceedings. She claims, in her
petition before this Court, that she received ineffective assistance of counsel during
her initial removal proceedings in 1999.
Free access — add to your briefcase to read the full text and ask questions with AI
Case: 17-11459 Date Filed: 05/10/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-11459 Non-Argument Calendar ________________________
Agency No. A073-555-378
ADEYINKA SALAMI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent. ________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(May 10, 2018)
Before JORDAN, JULIE CARNES, and HULL, Circuit Judges.
PER CURIAM:
Adeyinka Salami seeks review of the Board of Immigration Appeals’
affirmance of an Immigration Judge’s denial of her motion to sua sponte reopen Case: 17-11459 Date Filed: 05/10/2018 Page: 2 of 7
her removal proceedings. We, however, lack jurisdiction to review the BIA’s
decision not to exercise its sua sponte authority to reopen removal proceedings,
and we therefore dismiss Ms. Salami’s petition.
I
Ms. Salami, a native and citizen of Nigeria, entered the United States on or
about July 22, 1983, on a non-immigrant F1 student visa. Ms. Salami had
authorization to remain in the United States until June 13, 1987, but did not depart
the United States by that date. On May 23, 1997, Ms. Salami filed an application
for asylum, which was referred to an IJ for further proceedings. The former
Immigration and Naturalization Service commenced removal proceedings against
her in July 1997 through the issuance of a Notice to Appear. On September 26,
1997, Ms. Salami filed an application for cancellation of removal.
At her merits hearing on June 1, 1999, Ms. Salami withdrew her asylum and
cancellation of removal applications, and requested and was granted pre-hearing
voluntary departure in lieu of deportation. Ms. Salami was ordered to leave the
United States no later than September 29, 1999. As before, however, she did not
depart the country as ordered.
Sixteen years later, on August 18, 2015, Ms. Salami filed a motion to reopen
her removal proceedings. On July 19, 2016, the IJ denied the motion, concluding
that it was untimely, and that Ms. Salami did not present any exceptional
2 Case: 17-11459 Date Filed: 05/10/2018 Page: 3 of 7
circumstances warranting sua sponte reopening. The IJ also construed Ms.
Salami’s motion as perhaps asserting an ineffective assistance of counsel claim,
but rejected the claim because Ms. Salami had failed to comply with the procedural
requirements of Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). On March 6,
2017, the BIA affirmed the IJ’s ruling and dismissed Ms. Salami’s appeal.
II
We review de novo our own subject-matter jurisdiction. See Ruiz v.
Gonzales, 479 F.3d 762, 765 (11th Cir. 2007). When the BIA issues a decision, we
review that decision, “except to the extent that the BIA has expressly adopted the
IJ’s decision;” in that instance, we review both the IJ’s and the BIA’s decisions. Id.
III
An immigration judge may reopen removal proceedings through either
statutory authority or sua sponte authority. Under the Immigration and Nationality
Act, an alien may file one statutory motion to reopen removal proceedings. See 8
U.S.C. § 1229a(c)(7)(A). This motion must be filed within 90 days of the entry of
the final order of removal. See id. at § 1229a(c)(7)(C)(i). Here, Ms. Salami filed
her motion to reopen her removal proceedings more than 16 years after the
3 Case: 17-11459 Date Filed: 05/10/2018 Page: 4 of 7
removal order became final, and the IJ correctly concluded the motion was
untimely, under its statutory authority, to reopen her proceedings. 1
An IJ may reopen removal proceedings under her sua sponte authority at any
time, see 8 C.F.R. § 1003.2(a), and Butka v. U.S. Att’y Gen., 827 F.3d 1278, 1283
(11th Cir. 2016), but the BIA has held that this authority is “an extraordinary
remedy reserved for truly exceptional situations.” In re G—D—, 22 I&N Dec.
1132, 1134 (BIA 1999). “The power to reopen on our own motion is not meant to
be used as a general cure for filing defects or to otherwise circumvent the
regulations, where enforcing them might result in hardship.” In re J—J—, 21 I&N
Dec. 976, 984 (BIA 1997). Here, the IJ concluded, and the BIA agreed, that Ms.
Salami failed to prove any such exceptional circumstances.
We generally lack jurisdiction to review any decision of an IJ or the BIA
when declining to exercise their discretionary sua sponte authority to reopen
removal proceedings. See Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1294 (11th Cir.
2008) (“[T]he BIA’s decision whether to reopen proceedings on its own motion
pursuant to 8 C.F.R. § 1003.2(a) is committed to agency discretion by law. We are,
therefore, constrained to conclude that we lack jurisdiction to review the BIA’s
decision.”). This is because “under the Administrative Procedure Act, judicial
1 The 90-day deadline is subject to equitable tolling. See Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d 1357, 1362-64 (11th Cir. 2013) (en banc). Ms. Salami has provided no justification for equitable tolling, and did not appeal the IJ’s statutory untimeliness determination. 4 Case: 17-11459 Date Filed: 05/10/2018 Page: 5 of 7
review is not available when agency action is committed to agency discretion by
law.” Id. at 1293 (internal quotations omitted). See also 5 U.S.C. § 701(a)(2). The
Supreme Court has stated that “review is not to be had if the statute is drawn so
that a court would have no meaningful standard against which to judge the
agency’s exercise of discretion.” Heckler v. Chaney, 470 U.S. 821, 830 (1985).
And in Lenis, we held that the statutes and regulations at issue here provided no
such meaningful standard. See Lenis, 525 F.3d at 1293 (“[N]o statute expressly
authorizes the BIA to reopen cases sua sponte; rather, the regulation at issue
derives from a statute that grants general authority over immigration and
nationalization matters to the Attorney General, and sets no standard for the
Attorney General’s decision-making in this context.”).
One exception to this rule, however, may allow jurisdiction to review these
discretionary decisions. “[A]n appellate court may have jurisdiction over
constitutional claims related to the BIA’s decision not to exercise its sua sponte
power.” Id. at 1294 n.7 (emphasis added). We have not yet answered this open
question. See Butka, 827 F.3d at 1284.
Ms. Salami, however, does not raise any constitutional claims relating to the
decision not to sua sponte reopen her removal proceedings. She claims, in her
petition before this Court, that she received ineffective assistance of counsel during
her initial removal proceedings in 1999. But this constitutional claim goes to her
5 Case: 17-11459 Date Filed: 05/10/2018 Page: 6 of 7
initial removal proceedings, not to the IJ’s discretionary decision not to sua sponte
reopen those proceedings. We therefore remain without jurisdiction to review that
decision or its affirmance by the BIA.
In addition, Ms. Salami did not sufficiently raise this constitutional claim
before the BIA, and so we have no jurisdiction to review it substantively in any
case. “A petitioner fails to exhaust her administrative remedies with respect to a
particular claim when she does not raise that claim before the BIA.” Indrawati v.
U.S. Att’y Gen., 779 F.3d 1284, 1297 (11th Cir. 2015). And “[w]e lack jurisdiction
to review final orders in immigration cases unless ‘the alien has exhausted all
administrative remedies available to the alien as of right.’” Id. (quoting 8 U.S.C. §
1252(d)(1) and declining to review due process claim not raised before the BIA).
Because Ms. Salami failed to raise before the BIA any ineffective assistance of
counsel claims regarding the withdrawal of her asylum and cancellation of removal
applications, we are without jurisdiction to review any such claims. 2
Even construing Ms. Salami’s motion to reopen her removal proceedings
before the IJ as asserting a claim of ineffective assistance of counsel, as the IJ
2 As the government notes in its brief, Ms. Salami did not meaningfully raise this constitutional claim of ineffective assistance of counsel before the IJ either. In her motion to reopen her removal proceedings, she simply stated that “[w]hen the Respondent appeared for the Master Calendar hearing in these proceedings, her attorney advised her not to pursue her asylum application and to accept an order of voluntary departure.” The motion did not make mention of anything else remotely approaching an ineffective assistance of counsel claim. The IJ construed this single sentence as perhaps asserting a Lozada claim. But on appeal to the BIA, Ms. Salami again failed to raise this issue, and the BIA did not address it in its order affirming the IJ. 6 Case: 17-11459 Date Filed: 05/10/2018 Page: 7 of 7
liberally did, Ms. Salami still failed to substantially comply with Lozada, which
sets forth the procedural requirements an alien must satisfy before her ineffective
assistance of counsel claim may be heard. See Matter of Lozada, 19 I&N Dec. at
639. We have previously determined that the BIA may require aliens to satisfy the
Lozada test before considering any ineffective assistance of counsel claim. See
Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1274 (11th Cir. 2005); Gbaya v. U.S.
Att’y Gen., 342 F.3d 1219, 1221-22 (11th Cir. 2003). Thus, even if there were no
jurisdictional bars to our review of Ms. Salami’s ineffective assistance of counsel
claim, she procedurally defaulted any such claim.
IV
Because we lack jurisdiction to review the BIA’s affirmance of the IJ’s
decision declining to exercise its sua sponte authority to reopen Ms. Salami’s
removal proceedings, we dismiss Ms. Salami’s petition.
PETITION DISMISSED.