Ivan Linton v. U.S. Attorney General

Filing

Opinion issued by court as to Petitioner Ivan Eric Linton. Decision: Reversed and Remanded. Opinion type: Non-Published. Opinion method: Per Curiam. Petition GRANTED in part; REMANDED. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 02/23/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-13378
Non-Argument Calendar
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Agency No. A021-148-528

IVAN ERIC LINTON,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 23, 2017)
Before HULL, WILSON, and MARTIN, Circuit Judges.
PER CURIAM:

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Ivan Eric Linton petitions this Court for review of the Board of Immigration
Appeals’ (BIA) denial of his fifth and sixth motions to reopen his removal
proceedings. After careful review, we grant the petition in part and deny in part.
I.
Linton is a native and citizen of Jamaica. He came to the United States in
1979 and became a lawful permanent resident that year. In 1983, Linton pleaded
guilty to possession of marijuana and was sentenced to five years of probation. Six
years later, he was convicted at trial of conspiracy to possess cocaine and
attempted trafficking in cocaine, and was again sentenced to five years of
probation. In light of these convictions, in 2005 the Department of Homeland
Security (DHS) served Linton with a Notice to Appear, which charged him with
removability under the Immigration and Nationality Act (INA). See 8 U.S.C.
§ 1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated felony at any
time after admission is deportable.”); id. § 1227(a)(2)(B)(i) (same for certain
controlled substance violations). At his removal hearing, Linton admitted the
allegations in the Notice to Appear and conceded removability. However, he

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indicated his wish to apply for a waiver of deportation under former INA
§ 212(c).1 See 8 U.S.C. § 1182(c) (1994).
The Immigration Judge denied Linton’s request for a § 212(c) waiver. The
BIA upheld the denial, as did this Court. We affirmed the denial of § 212(c) relief
based on a restriction on § 212(c) eligibility that was grounded in the Supreme
Court’s decision in INS v. St. Cyr, 533 U.S. 289, 121 S. Ct. 2271 (2001). In St.
Cyr, the Supreme Court held that even though § 212(c) had been repealed by the
IIRIRA, Ҥ 212(c) relief remains available for aliens . . . whose convictions were
obtained through plea agreements” prior to the enactment of IIRIRA and “who . . .
would have been eligible for § 212(c) relief at the time of their plea.” Id. at 326,
121 S. Ct. at 2293. This Court interpreted St. Cyr to mean that Ҥ 212(c) relief is
not available to aliens who were convicted after a trial instead of on a guilty plea.”
Alexandre v. U.S. Att’y Gen., 452 F.3d 1204, 1207 (11th Cir. 2006) (per curiam);
see also Ferguson v. U.S. Att’y Gen., 563 F.3d 1254, 1271 (11th Cir. 2009). The
BIA applied Alexandre to Linton’s case, holding that due to his 1989 conviction by
jury trial, he was not eligible for § 212(c) relief. We agreed. See Linton v. U.S.
Att’y Gen., No. 08-15434 (11th Cir. Nov. 18, 2008).

1

In September 1996, the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (IIRIRA) repealed § 212(c), which allowed deportable aliens to seek a waiver of
inadmissibility. See Pub. L. No. 104–208, § 304(b), 110 Stat. 3009–597.
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Over the next few years, Linton filed a series of motions to reopen his
removal proceedings, asserting his eligibility for § 212(c) relief. Each of these was
denied. On April 6, 2011, Linton was removed to Jamaica where he still lives.
Months before his removal, Linton submitted an “application for asylum and
withholding of removal,” which the BIA would construe as Linton’s fifth motion
to reopen. For reasons not clear from the record, the motion was not stamped as
received until April 11, 2011—five days after Linton’s removal. This motion went
unadjudicated for years because Linton, who was then detained and proceeding pro
se, had incorrectly submitted it to the Immigration Court instead of the BIA. See 8
C.F.R. § 1003.2(a) (providing that a request to reopen “any case in which a
decision has been made by the Board . . . must be in the form of a written motion
to the Board”).
In April 2015, Linton filed a sixth motion to reopen based on the BIA’s
February 2014 decision in Matter of Abdelghany, 26 I. & N. Dec. 254, 2014 WL
811432 (BIA 2014). In Abdelghany, the BIA changed its interpretation of § 212(c)
eligibility to what Linton argued in his earlier motions to reopen. The BIA held
that intervening Supreme Court precedent applying St. Cyr “superseded” the
“prohibition against granting section 212(c) relief . . . to aliens convicted after
trial,” id. at 268, and that “Immigration Judges nationwide should now treat
deportable lawful permanent residents convicted after trial no differently for
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purposes of section 212(c) eligibility than deportable lawful permanent residents
convicted by means of plea agreements.” Id. Linton argued in his sixth motion to
reopen that the time and number limitations on motions to reopen should be tolled
due to the change in the law and, in the alternative, that sua sponte reopening was
warranted.
In June 2015, the BIA issued a decision denying both Linton’s fifth and
sixth motions to reopen. The BIA held that the sixth motion was time-barred and
rejected Linton’s argument that the 90-day time restriction should be equitably
tolled. In declining to apply equitable tolling, the BIA explained that Linton filed
his motion to reopen over a year after Abdelghany was decided and that Linton
failed to show “any misrepresentation or fraud” had “prevented” him from filing
his motion sooner. The BIA also declined to exercise its sua sponte authority to
reopen the removal proceedings, as Linton had been properly removed for his
criminal convictions and was not eligible for § 212(c) relief under the law in effect
at the time of removal.
The BIA then turned to Linton’s fifth motion to reopen, which it
acknowledged had gone unadjudicated since 2011. After “point[ing] out that the
motion was improperly filed with the Immigration Court,” the BIA treated the
motion as if it had originally been filed with the BIA. The BIA denied the motion
to reopen because Linton was no longer present in the United States. The BIA
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explained that the motion “sought reopening to pursue an application for asylum
and withholding of removal,” both of which are “forms of relief that are only
available to persons within the United States.” Because Linton’s lack of physical
presence made him ineligible for the underlying forms of relief sought in the
motion to reopen, the BIA reasoned that the motion itself must be denied.
Linton now petitions this Court for review of the BIA’s denial of his fifth
and sixth motions to reopen.
II.
We review the BIA’s denial of a motion to reopen for abuse of discretion.
Lonyem v. U.S. Att’y Gen., 352 F.3d 1338, 1340 (11th Cir. 2003) (per curiam).
As an initial matter, the government contends that we lack jurisdiction to review
Linton’s petition. We review de novo whether we have subject-matter jurisdiction
over the denial of a motion to reopen. Arias v. U.S. Att’y Gen., 482 F.3d 1281,
1283 (11th Cir. 2007) (per curiam).
In general, we lack jurisdiction to review a final order of removal or the
denial of a motion to reopen where, as here, the person is removable because he
committed an aggravated felony. See 8 U.S.C. § 1252(a)(2)(C); id.
§ 1227(a)(2)(A)(iii); Patel v. U.S. Att’y Gen., 334 F.3d 1259, 1262 (11th Cir.
2003) (holding that motions to reopen are subject to the jurisdiction-stripping
provision of § 1252(a)(2)(C)). However, under the REAL ID Act of 2005, we
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retain jurisdiction to address constitutional claims and questions of law. See 8
U.S.C. § 1252(a)(2)(D); Ali v. U.S. Att’y Gen., 443 F.3d 804, 809 (11th Cir. 2006)
(per curiam). Therefore, we have jurisdiction over the BIA’s denial of Linton’s
fifth and sixth motions to reopen only if he has raised either a question of law or a
constitutional claim.
A.
Regarding Linton’s sixth motion to reopen—the one asserting his eligibility
for § 212(c) relief in light of Abdelghany—Linton appeals the BIA’s decision that
he is not entitled to equitable tolling.2 A BIA decision on whether to grant
equitable tolling is a factual determination that does not raise a question of law or a
constitutional claim. See Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 957
(11th Cir. 2005) (per curiam) (“The timeliness of an asylum application is not a
constitutional claim or question of law covered by the Real ID Act’s changes.”);
see also Alim v. Gonzales, 446 F.3d 1239, 1252 (11th Cir. 2006) (“Questions of
timeliness and the applicability of these exceptions are left exclusively to the
Attorney General.”). Therefore, we lack jurisdiction to review the BIA’s decision
to deny Linton’s sixth motion to reopen.

2

Linton also argues that the BIA erred in declining to exercise its sua sponte authority to
grant his motion to reopen. This Court has ruled that we have no jurisdiction to review the
BIA’s denial of a motion to reopen based on its sua sponte authority. Lenis v. U.S. Att’y Gen.,
525 F.3d 1291, 1294 (11th Cir. 2008).
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B.
We turn next to the BIA’s denial of Linton’s fifth motion to reopen. The
Court does have jurisdiction over this motion because Linton has raised a legal
question. That is whether the BIA is permitted to deny a motion to reopen on the
ground that the alien is no longer present in the United States. See Alvarez Acosta
v. U.S. Att’y Gen., 524 F.3d 1191, 1197 (11th Cir. 2008) (observing that a
petitioner who claims that “the immigration judge failed to apply the correct legal
standard” states a question of law for purposes of § 1252(a)(2)(D) jurisdiction).
Linton argues that the BIA erred by imposing a “physical presence
requirement [on] motions to reopen.” He is right. This Court held in Jian Le Lin
v. U.S. Att’y Gen., 681 F.3d 1236 (11th Cir. 2012), that the physical removal of a
petitioner from the United States does not preclude the petitioner from pursuing a
motion to reopen. Id. at 1238. Lin involved a petitioner who, like Linton, filed a
motion to reopen predicated on a request for asylum. Id. Also like Linton, Mr. Lin
was removed from the United States before the BIA could rule on his motion. Id.
The BIA denied Mr. Lin’s motion to reopen because he was no longer in the
United States. Id. We rejected this so-called “departure bar,” concluding that it
impermissibly conflicts with the statutory right to file a motion to reopen. Id. at
1238, 1240. Congress, we observed, “clearly considered and included some
restrictions on the ability to file a motion to reopen but chose not to make a
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limitation based on the alien’s physical location.” Id. at 1240; see also GarciaCarias v. Holder, 697 F.3d 257, 263 (5th Cir. 2012) (“Section 1229a(c)(7)
unambiguously gives aliens a right to file a motion to reopen regardless of whether
they have left the United States.”). In light of Lin, the BIA was wrong to use
Linton’s removal from the United States as the basis to deny his motion to reopen.
The government argues that the BIA’s order provided a separate,
independently sufficient reason for denying Linton’s fifth motion to reopen: he
filed the motion in the wrong venue (in the Immigration Court rather than with the
BIA). We are not convinced. It is clear from the BIA’s order that Linton’s filing
mistake was not one of the BIA’s grounds for denying the motion. Although the
BIA did “point out that the motion was improperly filed with the Immigration
Court,” it never cited the filing error as reason enough to deny the motion.3
Rather, the BIA decided to “construe” the motion as if it were properly filed, and
went on to conclude on the merits that Linton “was lawfully removed and remains
abroad, where he cannot qualify for . . . [the] relief sought.” It was only on this
basis—Linton’s absence from the country—that the BIA said: “[the motion to
reopen] therefore will be denied.”
3

The government repeatedly asserts that the BIA concluded it “did not have []
jurisdiction over” the motion because of the filing error. This is not what the BIA’s order said.
The BIA never used the term “jurisdiction,” nor does anything in its one-sentence discussion of
the filing mistake suggest that the mistake implicated any sort of jurisdictional bar.
This Court has not sanctioned denial of a motion to reopen due to this sort of filing error,
particularly where the immigrant was detained and proceeding pro se, as Linton was here.
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The BIA denied Linton’s fifth motion to reopen solely because he was no
longer present in the United States. Because this is not a valid basis for denying a
motion to reopen, Lin, 681 F.3d at 1238, the BIA erred in denying it on that
ground. We therefore grant Linton’s petition for review as to his fifth motion to
reopen and remand this case to the BIA for a ruling on his fifth motion to reopen.
PETITION GRANTED IN PART; REMANDED.

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