Allaeldin Elhattab v. Attorney General United States of America

• Court: Court of Appeals for the Third Circuit
• Decided: August 15, 2025
• Docket: 24-1482
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _________________

No. 24-1482 _________________

ALLAELDIN ELHATTAB, Petitioner v.

ATTORNEY GENERAL UNITED STATES OF AMERICA ________________ On Petition for Review of a Decision of the Board of Immigration Appeals (BIA-1 : A075-872-143) Immigration Judge: Alberto J. Riefkohl ________________ Submitted Under Third Circuit L.A.R. 34.1(a) December 5, 2024

Before: SHWARTZ, MATEY, and McKEE, Circuit Judges

(Opinion filed: August 15, 2025)

______________

OPINION* ______________

McKEE, Circuit Judge.

*This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Allaeldin Elhattab petitions this Court for review of a Board of Immigration

Appeals order denying his motion to reopen. For the following reasons, we will deny his

petition.1

I.

“As a general rule, motions to reopen are granted only under compelling

circumstances.”2 We review the BIA’s denial of a motion to reopen for abuse of

discretion.3 The decision will be reversed only if it is arbitrary, irrational, or contrary to

law.4

Elhattab’s main contention on appeal is that the BIA abused its discretion in

denying his motion to reopen. The BIA will not grant a motion to reopen unless the

evidence offered was previously unavailable and could not have been discovered or

presented at an earlier stage in the proceedings.5 Generally, a noncitizen may file

one motion to reopen within ninety days of a removal order.6

1 The BIA had jurisdiction over the motion to reopen under 8 C.F.R. § 1003.2(a). We generally have jurisdiction to review the denial of a motion to reopen under 8 U.S.C. § 1252(a)(1) unless a jurisdiction-stripping provision under § 1252(a)(2) applies. See Khan v. Att’y Gen., 691 F.3d 488, 492 (3d Cir. 2012). Although § 1252(a)(2)(B) otherwise strips us of jurisdiction to review judgments regarding the sort of discretionary relief Elhattab seeks, because his challenge presents a question of law, Nkomo v. Att’y Gen., 986 F.3d 268, 272 (3d Cir. 2021) (“Application of the equitable tolling standard to undisputed or established facts is a question of law.” (internal quotation marks and citation omitted)), we have jurisdiction to review the BIA’s order. § 1252(a)(2)(D). Because removal proceedings before the IJ were held in Newark, New Jersey, venue is proper in this Court. § 1252(b). 2 Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir. 2004). 3 Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). 4 Id. 5 8 C.F.R. § 1003.2(c)(1). 6 8 U.S.C. § 1229a(c)(7)(A), (c)(7)(C)(i); § 1003.2(c)(2). 2 It is undisputed that Elhattab’s motion is facially time and number-barred because

it is his fourth motion to reopen and filed more than fifteen years after the removal order

issued. He therefore argues that the BIA should have equitably tolled the time and

number limitations and erred in finding that equitable tolling was unwarranted. Equitable

tolling generally requires a petitioner to show “(1) that he has been pursuing his rights

diligently, and (2) that some extraordinary circumstance stood in his way” and prevented

a proper filing.7 Elhattab cannot satisfy either requirement.

Elhattab asserts that the BIA has an established policy of equitably tolling the

motion deadline where there is a significant change in law. He claims that In re X-G-W-

was a change in law that created an extraordinary circumstance warranting equitable

tolling. In In re X-G-W-, the BIA announced a new policy that allowed non-citizens to

pursue untimely motions to reopen based on coercive population control policies.8 That

decision was in response to Congress amending the definition of “refugee” under §

601(a)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of

1996 (“IIRIRA”).9 The amendment was enacted to recognize that a person persecuted

under a coercive population control program has been persecuted on account of political

opinion.10 This policy remained in effect for four years until the BIA, in In re G-C-L-,

7 Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotation marks omitted) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); see also Alzaarir v. Att’y Gen., 639 F.3d 86, 90 (3d Cir. 2011) (“The time limit for filing a motion to reopen is subject to equitable tolling, and perhaps the numerical limit is as well.”). 8 See 22 I. & N. Dec. 71, 74 (B.I.A. 1998). 9 See id at 72. 10 See id. 3 declared it no longer considers untimely motions to reopen based upon In re X-G-W-.11

Elhattab has never asserted any such claim of persecution, and in any event, the policy

was rescinded years ago. Moreover, In re X-G-W- involved the BIA’s exercise of its

discretionary authority to reopen a proceeding sua sponte,12 which the BIA expressly

declined to do here—a decision which this Court lacks jurisdiction to review.13

Similarly, Elhattab claims that the BIA should have equitably tolled the limitations

based on the Supreme Court’s decisions in Pereira v. Sessions14 and Niz-Chavez v.

Garland.15 In Pereira, the Supreme Court held that a Notice to Appear (“NTA”) must

include the date and place of a removal hearing to trigger the “stop-time rule” for

cancellation of removal.16 Niz-Chavez further held that a subsequent notice specifying the

date and place of a hearing does not cure a defective NTA.17 Elhattab’s NTA did not

include the date or time of his removal hearing. However, Elhattab offers no explanation

for why he failed to raise any argument before the BIA based on Niz-Chavez until 150

days after the decision was issued—60 days beyond the 90-day deadline imposed by 8

U.S.C. § 1229a(c)(7)(C).18 More significantly, he offers no explanation for why he

waited nearly a year and nine months after this Court’s decision in Guadalupe v. Attorney

11 See In re G-C-L-, 23 I. & N. Dec. 359, 361–62 (B.I.A. 2002). 12 22 I. & N. Dec. at 73. 13 See Nkomo v. Att’y Gen., 986 F.3d 268, 272 (3d Cir. 2021). 14 585 U.S. 198 (2018). 15 593 U.S. 155 (2021). 16 Pereira, 585 U.S. at 209. 17 Niz-Chavez, 593 U.S. at 171-72. 18 See Niz-Chavez, 593 U.S. 155. 4 General, which established the binding rule as Niz-Chavez in this Circuit.19 Absent such

an explanation, these limitations cannot be equitably tolled.20

Finally, Elhattab argues that the BIA committed error by failing to consider the

record as a whole in reaching a due diligence finding. The BIA, however, is entitled to a

“presumption of regularity.”21 The petitioner bears the burden of proof that the BIA did

not review the record when it considered the appeal.22 In this case, fifteen years have

elapsed since he was ordered removed and Elhattab has not come close to overcoming

that presumption. The BIA thus did not abuse its discretion in declining to equitably toll

the limitations for his fourth untimely motion to reopen.

II.

For the foregoing reasons, we will deny the petition.

19 951 F.3d 161, 162 (3d Cir. 2020). 20 See Mahmood v. Gonzales, 427 F.3d 248, 252-53 (3d Cir. 2005) (holding that failure to seek relief for over year does not demonstrate diligence necessary to apply equitable tolling). 21 Darby v. Att’y Gen., 1 F.4th 151, 166 (3d Cir. 2021) (quoting Abdulai v. Ashcroft, 239 F.3d 542, 550 (3d Cir. 2001)). 22 See Kamara v. Att’y Gen., 420 F.3d 202, 212 (3d Cir. 2005). 5