Alarazim Kassim v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 25, 2021
• Docket: 20-71242
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 25 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ALARAZIM KASSIM, No. 20-71242

Petitioner, Agency No. A046-708-731

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted October 21, 2021** San Francisco, California

Before: BADE and BUMATAY, Circuit Judges, and SESSIONS,*** District Judge.

Alarazim Kassim, a native and citizen of Sierra Leone, petitions for review of

a Board of Immigration Appeals’ (“BIA”) decision denying his motion to reopen his

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable William K. Sessions III, United States District Judge for the District of Vermont, sitting by designation. removal proceedings. We review the denial of a motion to reopen for abuse of

discretion and may grant relief only if the BIA’s decision was “arbitrary, irrational,

or contrary to law.” Ocampo v. Holder, 629 F.3d 923, 925 (9th Cir. 2010) (internal

quotation marks omitted). We have jurisdiction under 8 U.S.C. § 1252. We dismiss

the petition in part and deny the petition in part.

1. The BIA did not abuse its discretion in denying Kassim’s motion to

reopen as untimely. Unless equitable tolling is available, a motion to reopen must

be filed within 90 days after the final administrative order of removal is rendered. 8

U.S.C. § 1229a(c)(7)(C)(i); Bonilla v. Lynch, 840 F.3d 575, 582 (9th Cir. 2016). The

BIA dismissed Kassim’s appeal of his removal order in 2005, yet Kassim did not

file his motion to reopen until 2019, a gap of 14 years. Because his motion to reopen

was filed more than 90 days after the final decision of the BIA, Kassim’s motion

was untimely unless equitable tolling applies.

Kassim argues that he is entitled to equitable tolling because he received

ineffective assistance of counsel. Specifically, he contends his former counsel failed

to contest his removability and filed an incomplete motion to remand. He asserts he

was convicted of an offense involving possession of marijuana, which, in Kassim’s

view, falls into an exception for removability under 8 U.S.C. § 1227(a)(2)(B)(i). He

also claims that his conviction for marijuana does not meet the federal definition of

the controlled substance under more recent caselaw.

2 To be eligible for equitable tolling due to ineffective assistance of counsel, a

petitioner must demonstrate (1) that counsel’s ineffectiveness prevented him from

filing a timely motion; (2) that he showed due diligence in uncovering counsel’s

fraud or error; and (3) that he generally followed the procedural requirements in

Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). Singh v. Holder, 658 F.3d 879,

884 (9th Cir. 2011). If these requirements are met, the petitioner must then show

that counsel’s performance was insufficient, and he suffered prejudice as a result.

Id. at 885.

The BIA applied the correct standard and did not abuse its discretion in

determining that Kassim failed to demonstrate reasonable efforts to pursue relief

between 2005 and 2019. See Avagyan v. Holder, 646 F.3d 672, 680–81 (9th Cir.

2011) (holding that a petitioner was insufficiently diligent because she “[a]pparently

. . . took no affirmative steps to investigate” whether counsel adequately prepared

her claims). Although Kassim contends he diligently pursued his case after changes

in the law in 2013 and 2015, he provided no explanation for his lack of diligence for

several years prior to the changes. See Bonilla, 840 F.3d at 583 (finding a petitioner

ineligible for equitable tolling because she waited six years, “an exceedingly long

lapse of time,” to seek further legal advice and had no explanation for her delay).

The BIA also noted that the primary basis for his claim of ineffective assistance did

not relate to the changes in the law in 2013 and 2015. Accordingly, the BIA did not

3 abuse its discretion in declining to equitably toll the deadline for Kassim to file his

motion to reopen.

Because the due diligence determination is dispositive, we do not reach the

merits of Kassim’s motion to reopen. See Toufighi v. Mukasey, 538 F.3d 988, 993

(9th Cir. 2008) (sustaining the denial of a motion to reopen on the passage of the 90-

day deadline alone and declining to reach other issues).

2. Kassim also challenges the BIA’s failure to reopen his case sua sponte.

We typically lack jurisdiction to review the BIA’s denial of sua sponte reopening.

See Ekimian v. INS, 303 F.3d 1153, 1159–60 (9th Cir. 2002). We may, however,

“review denials of sua sponte reopening where . . . there is ‘law to apply’ in doing

so.” Bonilla, 840 F.3d at 587. Consequently, we have jurisdiction to review the

BIA’s denial of sua sponte reopening “for the limited purpose of reviewing the

reasoning behind the decision[] for legal or constitutional error.” Id. at 588.

Kassim asserts the BIA committed legal error by applying the wrong legal

standard in considering sua sponte reopening. We disagree. In declining to reopen

proceedings sua sponte, the BIA directly cited to In re J-J-, 21 I. & N. Dec. 976 (BIA

1997), which provides that sua sponte reopenings are reserved for “exceptional

situations.” Id. at 984. Kassim concedes that this is the correct legal standard for

sua sponte reopening. Accordingly, “the BIA’s decision . . . evince[d] no

misunderstanding about its unfettered discretion under 8 C.F.R. § 1003.2(a).” Lona

4 v. Barr, 958 F.3d 1225, 1234 (9th Cir. 2020). We lack jurisdiction to consider

Kassim’s other claims regarding sua sponte reopening. Ekimian, 303 F.3d at 1159.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.