Case: 18-13581 Date Filed: 10/25/2019 Page: 1 of 6 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 18-13581 Non-Argument Calendar ________________________ Agency No.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 ...
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