United States Court of Appeals For the Eighth Circuit ___________________________ No. 21-1803 ___________________________ Mohamed Dahir Mohamed lllllllllllllllllllllPetitioner v. Merrick B. Garland, Attorney General of the United States lllllllllllllllllllllRespondent ____________ Petition for Review of an Order of the Board of Immigration Appeals ____________ Submitted: November 2, 2021 Filed: November 5, 2021 [Unpublished] ____________ Before BENTON, KELLY, and GRASZ, Circuit Judges. ____________ PER CURIAM. Somalian native and citizen Mohamed Dahir Mohamed petitions for review of an order of the Board of Immigration Appeals (BIA), which dismissed his appeal from an immigration judge’s decision. The immigration judge denied his 2019 motion to reconsider his 2005 removal order, under 8 U.S.C. § 1229a(c)(6) and 8 C.F.R. § 1003.23(b)(1), based on his former counsel’s alleged ineffective assistance in failing to legally challenge his removability charges. In this court, he raises constitutional claims and questions of law, which we generally have jurisdiction to review. See 8 U.S.C. § 1252(a)(2)(D); see also Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1067, 1068-69 (2020) (concluding the phrase “questions of law” in § 1252(a)(2)(D) extends to mixed questions of law and fact involving “the application of a legal standard to undisputed or established facts,” including a noncitizen’s claim of due diligence for equitable tolling purposes). For the following reasons, we deny the petition, in part, and dismiss it, in part. Mohamed conceded his motion was untimely by years, see 8 U.S.C. § 1229a(c)(6)(B) (thirty-day deadline), but he sought to equitably toll the deadline. Even assuming counsel’s alleged ineffectiveness was an extraordinary circumstance, we conclude the BIA did not err when it determined Mohamed was not entitled to equitable tolling because the undisputed facts demonstrated he failed to exercise due diligence. See Capiz-Fabian v. Barr, 933 F.3d 1015, 1018 (8th Cir. 2019) (stating a litigant seeking to invoke equitable tolling must demonstrate some extraordinary circumstance stood in his way, and he diligently pursed his rights); Pafe v. Holder, 615 F.3d 967, 969 (8th Cir. 2010) (per curiam) (reiterating equitable tolling is “sparingly invoked” for ineffective-assistance-of-counsel claims in the immigration context); Habchy v. Gonzales, 471 F.3d 858, 864 (8th Cir. 2006) (citation omitted) (stating a noncitizen “must exercise due diligence in ‘discovering the deception, fraud, or error’ giving rise to the ineffective assistance of counsel”). Equitable tolling “is not available to those who sleep on their rights,” Habchy, 471 F.3d at 866, and Mohamed’s failure to take any action for over a decade, despite his lingering concerns, shows he failed to act with the requisite diligence, see Capiz-Fabian, 933 F.3d at 1018 (“Large time lapses are a significant obstacle to establishing [a noncitizen] has diligently pursued his rights.”); Mwangi v. Barr, 934 F.3d 818, 821 (8th Cir. 2019) (concluding the complexities of immigration law did not excuse a noncitizen’s inaction and delay in securing new counsel). As the BIA also recognized, Mohamed knew or should have known about the alleged ineffectiveness -2- in June 2018 at the latest, but he did not file his motion until over a year later, which further …
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