Shaneela Memon v. U.S. Attorney General

Case: 17-14552 Date Filed: 05/15/2018 Page: 1 of 5 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 17-14552 Non-Argument Calendar ________________________ Agency No. A072-185-838 SHANEELA MEMON, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (May 15, 2018) Before MARCUS, WILSON, and ROSENBAUM, Circuit Judges. PER CURIAM: Case: 17-14552 Date Filed: 05/15/2018 Page: 2 of 5 Shahneela Memon petitions for review of the Board of Immigration Appeal’s (BIA) order denying her motion to reconsider its earlier denial of her motion to reopen her removal proceedings. Memon argues that she was entitled to equitable tolling on her motion to reopen and that the BIA relied on an incorrect factual determination, regarding her marriage, in concluding that she was not so entitled. After a review of the record and the parties’ briefs, we affirm. Memon, a Pakistani native, arrived in New York without valid entry documents in February 1992. Three years later, an Immigration Judge (IJ) ordered her to be excluded and deported based on the fraudulent passport she used to enter the country. Memon made a motion to reopen her exclusion proceedings and stay her deportation, which was ultimately denied. Twenty years later, in 2015, she filed a second motion to reopen her proceedings, this time arguing that the she was the beneficiary of an approved I-130 petition for an undocumented immigrant relative (made on her behalf by her husband, who is now a United States citizen) and could, therefore, apply for adjustment of status. She acknowledged that her motion to reopen was untimely, but argued that it was subject to equitable tolling for extraordinary circumstances because she suffered from a mental illness. The IJ denied the motion, because, among other things, it was both time and number barred, and because Memon failed to present new, material facts that were unavailable at the time of her original hearing. She appealed to the BIA, adding 2 Case: 17-14552 Date Filed: 05/15/2018 Page: 3 of 5 the argument that her due process rights were violated because she was prejudiced by the denial, which she alleged was based on her mental condition. The BIA affirmed the IJ’s decision and denied her motion to reconsider; she now appeals that denial. We review the BIA’s decision to deny a motion to reconsider for an abuse of discretion, determining “whether the exercise of discretion was arbitrary or capricious.” Ferreira v. U.S. Att’y Gen., 714 F.3d 1240, 1243 (11th Cir. 2013) (internal quotation marks omitted). Generally, a petitioner may file only one motion for reconsideration of any prior decision and only one motion to reopen removal proceedings. INA § 240(c)(6)(A), 8 U.S.C. § 1229a(c)(6)(A); INA § 240(c)(7)(A); 8 U.S.C. § 1229a(c)(7)(A). These motions are subject to 90-day deadlines that are non-jurisdictional and subject to equitable tolling. Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d 1357, 1362–64 (11th Cir. 2013) (per curiam). Moreover, the IJ and the BIA may also exercise ...

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