Case: 18-13581 Date Filed: 10/25/2019 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-13581 Non-Argument Calendar ________________________
Agency No. A088-551-163
LONG CAO, Petitioner,
versus
UNITED STATES ATTORNEY GENERAL, Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(October 25, 2019)
Before TJOFLAT, MARCUS and JORDAN, Circuit Judges.
PER CURIAM:
Long Cao, proceeding pro se, petitions for review of the Board of Immigration
Appeals’ (“BIA”) order denying his 2018 motion to reopen his immigration
proceedings, which were finalized in June 2014, and, alternatively, for the BIA to
reissue its June 2014 summary dismissal of his immigration appeal with a new date. Case: 18-13581 Date Filed: 10/25/2019 Page: 2 of 6
In his motion, Cao argued that he received ineffective assistance of counsel in his
original immigration proceedings, because his attorney failed to file a brief to the
BIA and to notify him of the BIA’s decision after it was issued. He alleged that he
learned of the June 2014 dismissal in March 2017 through a Freedom of Information
Act (“FOIA”) request, and that he filed the instant motion in 2018 after attempting
to satisfy the requirements of an ineffective assistance of counsel claim in the
immigration courts. The BIA denied the motion to reopen as untimely, concluding
that equitable tolling was unwarranted based on the delay between its June 2014
decision and the filing of the motion in 2018, and based on the roughly one-year
delay between March 2107, when Cao allegedly first learned of the decision, and
when filed his motion in 2018. For similar reasons, the BIA declined to reissue its
June 2014 decision with a new date. After careful review, we dismiss the petition
in part and deny it in part.
We review the BIA’s denial of a motion to reopen removal proceedings for
abuse of discretion. Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009).
This review is limited to determining whether the BIA exercised its discretion in an
arbitrary or capricious manner. Id. We must affirm if the BIA’s decision is based
on reasoned consideration and shows that the BIA made adequate findings to support
the outcome. Lin v. U.S. Att’y Gen., 881 F.3d 860, 871-72 (11th Cir. 2018).
2 Case: 18-13581 Date Filed: 10/25/2019 Page: 3 of 6
Under the Immigration and Nationality Act (“INA”), an alien may file one
statutory motion to reopen his removal proceedings, and the motion must be filed
within 90 days of the date of entry of the administratively final order of removal. 8
U.S.C. § 1229a(c)(7)(A), (C). The 90-day deadline is non-jurisdictional and is
subject to equitable tolling. Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d 1357, 1362-
65 (11th Cir. 2013) (en banc). Typically, equitable tolling of a time deadline requires
a showing that the litigant: (1) has been pursuing his rights diligently; and (2) some
extraordinary circumstance stood in his way. Lin, 881 F.3d at 872. In the context
of a motion to reopen removal proceedings, there is no significant difference
between the “extraordinary” circumstances required to justify equitable tolling and
“exceptional circumstances” as defined by 8 U.S.C. § 1229a(e)(1). Avila-Santoyo,
713 F.3d at 1363 n.5. The INA defines “exceptional circumstances” as
circumstances beyond the control of the alien, including battery or extreme cruelty
and serious illness, “but not including less compelling circumstances.” 8 U.S.C. §
1229a(e)(1). We’ve held that waiting more than three years to seek reopening “after
the means to challenge that order [of removal] became available does not
demonstrate diligence,” particularly in light of the petitioner’s lack of explanation
for the delay. United States v. Watkins, 880 F.3d 1221, 1226 n.2 (11th Cir. 2018).
We’ve also previously determined that the BIA may require aliens to satisfy
the procedural requirements set forth in Matter of Lozada, 19 I. & N. Dec. 673 (BIA
3 Case: 18-13581 Date Filed: 10/25/2019 Page: 4 of 6
1988), for obtaining relief based on a claim of ineffective assistance of counsel. See
Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1274 (11th Cir. 2005). Under Lozada,
an alien asserting an ineffectiveness claim must: (1) submit an affidavit setting forth
in detail the agreement entered into with counsel, (2) demonstrate that his counsel
was informed of the allegations leveled against him and given an opportunity to
respond, and (3) indicate whether a complaint had been filed with disciplinary
authorities concerning counsel’s representation. Dakane, 399 F.3d at 1274.
Here, the BIA did not abuse its discretion in denying the motion to reopen,
based on its decision not to apply equitable tolling. For starters, the notice of the
BIA’s 2014 dismissal was mailed to Cao’s address as reflected on the notice of
appeal, and he failed to explain why over three-and-a-half years elapsed between the
issuance of the decision and the filing of his motion. He was required to show
“exceptional circumstances” beyond his control, such as extreme cruelty or serious
illness, neither of which is akin to simply waiting an extended period of time to
inquire about a decision. See 8 U.S.C. § 1229a(e)(1). Cao likewise failed to explain
what steps he took during this interim period to determine whether the BIA had made
a decision. Indeed, we’ve specifically held that waiting three years “after the means
to challenge that order [of removal] became available does not demonstrate
diligence.” Watkins, 880 F.3d at 1226 n.2. What’s more, Cao also did not submit a
notarized affidavit stating that he never received the 2014 dismissal, so there is no
4 Case: 18-13581 Date Filed: 10/25/2019 Page: 5 of 6
verified evidence to support his assertion that he did not receive the BIA’s ruling
until March 2017.
Further, not only was there a delay between the 2014 decision and the 2017
FOIA request, the BIA also relied on the fact that almost another year elapsed
between when Cao received notice of the decision through the FOIA request in
March 2017 and his filing in February 2018. Cao may well have been attempting to
comply with the requirements of Lozado, but nothing in that case requires the alien
to wait nearly a year for a response from prior counsel. Thus, on this record, the
BIA’s denial of equitable tolling was not an abuse of discretion, and Cao has failed
to show any error in the BIA’s denial of his motion to reopen.
We are also unpersuaded by Cao’s claim that the BIA abused its discretion in
denying Cao’s request for reissuance.
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Case: 18-13581 Date Filed: 10/25/2019 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-13581 Non-Argument Calendar ________________________
Agency No. A088-551-163
LONG CAO, Petitioner,
versus
UNITED STATES ATTORNEY GENERAL, Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(October 25, 2019)
Before TJOFLAT, MARCUS and JORDAN, Circuit Judges.
PER CURIAM:
Long Cao, proceeding pro se, petitions for review of the Board of Immigration
Appeals’ (“BIA”) order denying his 2018 motion to reopen his immigration
proceedings, which were finalized in June 2014, and, alternatively, for the BIA to
reissue its June 2014 summary dismissal of his immigration appeal with a new date. Case: 18-13581 Date Filed: 10/25/2019 Page: 2 of 6
In his motion, Cao argued that he received ineffective assistance of counsel in his
original immigration proceedings, because his attorney failed to file a brief to the
BIA and to notify him of the BIA’s decision after it was issued. He alleged that he
learned of the June 2014 dismissal in March 2017 through a Freedom of Information
Act (“FOIA”) request, and that he filed the instant motion in 2018 after attempting
to satisfy the requirements of an ineffective assistance of counsel claim in the
immigration courts. The BIA denied the motion to reopen as untimely, concluding
that equitable tolling was unwarranted based on the delay between its June 2014
decision and the filing of the motion in 2018, and based on the roughly one-year
delay between March 2107, when Cao allegedly first learned of the decision, and
when filed his motion in 2018. For similar reasons, the BIA declined to reissue its
June 2014 decision with a new date. After careful review, we dismiss the petition
in part and deny it in part.
We review the BIA’s denial of a motion to reopen removal proceedings for
abuse of discretion. Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009).
This review is limited to determining whether the BIA exercised its discretion in an
arbitrary or capricious manner. Id. We must affirm if the BIA’s decision is based
on reasoned consideration and shows that the BIA made adequate findings to support
the outcome. Lin v. U.S. Att’y Gen., 881 F.3d 860, 871-72 (11th Cir. 2018).
2 Case: 18-13581 Date Filed: 10/25/2019 Page: 3 of 6
Under the Immigration and Nationality Act (“INA”), an alien may file one
statutory motion to reopen his removal proceedings, and the motion must be filed
within 90 days of the date of entry of the administratively final order of removal. 8
U.S.C. § 1229a(c)(7)(A), (C). The 90-day deadline is non-jurisdictional and is
subject to equitable tolling. Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d 1357, 1362-
65 (11th Cir. 2013) (en banc). Typically, equitable tolling of a time deadline requires
a showing that the litigant: (1) has been pursuing his rights diligently; and (2) some
extraordinary circumstance stood in his way. Lin, 881 F.3d at 872. In the context
of a motion to reopen removal proceedings, there is no significant difference
between the “extraordinary” circumstances required to justify equitable tolling and
“exceptional circumstances” as defined by 8 U.S.C. § 1229a(e)(1). Avila-Santoyo,
713 F.3d at 1363 n.5. The INA defines “exceptional circumstances” as
circumstances beyond the control of the alien, including battery or extreme cruelty
and serious illness, “but not including less compelling circumstances.” 8 U.S.C. §
1229a(e)(1). We’ve held that waiting more than three years to seek reopening “after
the means to challenge that order [of removal] became available does not
demonstrate diligence,” particularly in light of the petitioner’s lack of explanation
for the delay. United States v. Watkins, 880 F.3d 1221, 1226 n.2 (11th Cir. 2018).
We’ve also previously determined that the BIA may require aliens to satisfy
the procedural requirements set forth in Matter of Lozada, 19 I. & N. Dec. 673 (BIA
3 Case: 18-13581 Date Filed: 10/25/2019 Page: 4 of 6
1988), for obtaining relief based on a claim of ineffective assistance of counsel. See
Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1274 (11th Cir. 2005). Under Lozada,
an alien asserting an ineffectiveness claim must: (1) submit an affidavit setting forth
in detail the agreement entered into with counsel, (2) demonstrate that his counsel
was informed of the allegations leveled against him and given an opportunity to
respond, and (3) indicate whether a complaint had been filed with disciplinary
authorities concerning counsel’s representation. Dakane, 399 F.3d at 1274.
Here, the BIA did not abuse its discretion in denying the motion to reopen,
based on its decision not to apply equitable tolling. For starters, the notice of the
BIA’s 2014 dismissal was mailed to Cao’s address as reflected on the notice of
appeal, and he failed to explain why over three-and-a-half years elapsed between the
issuance of the decision and the filing of his motion. He was required to show
“exceptional circumstances” beyond his control, such as extreme cruelty or serious
illness, neither of which is akin to simply waiting an extended period of time to
inquire about a decision. See 8 U.S.C. § 1229a(e)(1). Cao likewise failed to explain
what steps he took during this interim period to determine whether the BIA had made
a decision. Indeed, we’ve specifically held that waiting three years “after the means
to challenge that order [of removal] became available does not demonstrate
diligence.” Watkins, 880 F.3d at 1226 n.2. What’s more, Cao also did not submit a
notarized affidavit stating that he never received the 2014 dismissal, so there is no
4 Case: 18-13581 Date Filed: 10/25/2019 Page: 5 of 6
verified evidence to support his assertion that he did not receive the BIA’s ruling
until March 2017.
Further, not only was there a delay between the 2014 decision and the 2017
FOIA request, the BIA also relied on the fact that almost another year elapsed
between when Cao received notice of the decision through the FOIA request in
March 2017 and his filing in February 2018. Cao may well have been attempting to
comply with the requirements of Lozado, but nothing in that case requires the alien
to wait nearly a year for a response from prior counsel. Thus, on this record, the
BIA’s denial of equitable tolling was not an abuse of discretion, and Cao has failed
to show any error in the BIA’s denial of his motion to reopen.
We are also unpersuaded by Cao’s claim that the BIA abused its discretion in
denying Cao’s request for reissuance. Even if we assume, arguendo, that the BIA
had the authority to grant Cao’s request, 1 we still conclude that the BIA did not abuse
its discretion in denying his motion. For the reasons we’ve already discussed, Cao
1 We have not expressly addressed, in a published opinion, whether the BIA has the authority to reissue its decision for the purpose of resetting the time period for a petitioner to file a petition for review. In one published opinion, we acknowledged, though we did not discuss, that the BIA had reissued its decision because of improper mailing of the original decision. See Lonyem v. U.S. Att’y Gen., 352 F.3d 1338, 1340 n.3 (11th Cir. 2003). In addition, other circuits have held that a BIA’s reissuance triggers a new 30-day period to file a petition for review. See Lewis v. Holder, 625 F.3d 65, 68 (2d Cir. 2010); Firmansjah v. Ashcroft, 347 F.3d 625, 626 (7th Cir. 2003). In Firmansjah, the Seventh Circuit expressly considered the question here, where a petitioner had not received notice of the BIA’s decision, holding that although district courts are restricted from extending the time to appeal, no similar ban applies to administrative agencies and, thus, “there is no legal obstacle to judicial review.” 347 F.3d at 626-27. Because it’s clear that the BIA did not abuse its discretion in denying Cao’s request for reissuance, we need not resolve whether the BIA would have had the authority to reissue its decision. 5 Case: 18-13581 Date Filed: 10/25/2019 Page: 6 of 6
failed to establish that he exercised due diligence: (1) in the period between the
issuance of the dismissal in June 2014 and his 2018 motion to reopen; and (2)
assuming the veracity of his claim that he never received the decision, between
learning of it in March 2017 and the 2018 motion. Accordingly, Cao has failed to
show that the BIA abused its discretion in denying his request for reissuance.
PETITION FOR REVIEW DISMISSED IN PART, DENIED IN PART.