United States Court of Appeals 

For the First Circuit 

No. 15-1258 

SOHIEL OMAR, 

Petitioner, 

v. 

LORETTA E. LYNCH,*

Attorney General of the United States, 

Respondent. 

PETITION FOR REVIEW OF AN ORDER 

OF THE BOARD OF IMMIGRATION APPEALS 

Before 

Lynch, Stahl, and Barron, 

Circuit Judges. 

Linda Kenepaske and Law Offices of Linda Kenepaske, PLLC on 

brief for petitioner. 

Benjamin C. Mizer, Principal Deputy Assistant Attorney 

General, Civil Division, Cindy S. Ferrier, Assistant Director, and 

Lindsay M. Murphy, Trial Attorney, Office of Immigration 

Litigation, U.S. Department of Justice, on brief for respondent. 

February 25, 2016 

 * Pursuant to Fed. R. App. P. 43(c)(2), Attorney General 

Loretta E. Lynch has been substituted for former Attorney General 

Eric H. Holder, Jr., as the respondent. 
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BARRON, Circuit Judge. Sohiel Omar is a native and 

citizen of Pakistan. He was ordered removed more than a decade 

ago, and he appealed that order to the Board of Immigration Appeals 

("BIA") in a timely manner. After that appeal failed, he then 

filed a timely motion to reconsider, but the BIA rejected that 

motion as well. More than a decade later, Omar filed a second 

motion to reconsider. That motion, too, was denied. He now 

petitions for review of the BIA's denial of his second motion to 

reconsider. We deny the petition for review. 

I. 

We begin by recounting the somewhat lengthy procedural 

history that led to the BIA's ruling that is at issue here. On 

January 26, 1998, the former Immigration and Naturalization 

Service charged Omar with removability based on a set of 1994 

convictions that rendered him an aggravated felon. 

At his removal hearing, Omar sought relief under § 212(c) 

of the Immigration and Nationality Act of 1952, Pub. L. No. 82-

414, 66 Stat. 163, 187, as amended by Immigration Act of 1990, 

§ 511(a), Pub. L. No. 101-649, 104 Stat. 4978, 5052, as amended by 

Miscellaneous and Technical Immigration and Naturalization 

Amendments of 1991, § 306(a)(10), Pub. L. No. 102-232, 105 Stat. 

1733, 1751. Under that provision, the Attorney General had 

relatively broad discretion to grant relief to aliens otherwise 

deemed inadmissible or removable if they had established a lawful, 
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unrelinquished domicile in the United States of seven consecutive 

years. Id. 

The Immigration Judge ("IJ") rejected Omar's request for 

§ 212(c) relief on August 26, 2002. The IJ ruled that the passage 

of the Illegal Immigration Reform and Immigrant Responsibility Act 

("IIRIRA"), § 304(b), Pub. L. No. 104-208, 110 Stat. 3009-546, 

3009-597, in September 1996 barred Omar from obtaining such relief, 

notwithstanding that Omar's 1994 convictions pre-dated the 

IIRIRA's enactment. 

The IJ reasoned that the IIRIRA applied retroactively to 

Omar based on the IJ's interpretation of the Supreme Court's 

decision in I.N.S. v. St. Cyr, 533 U.S. 289 (2001). There, the 

Supreme Court held that the provision of the IIRIRA that eliminated 

§ 212(c) relief did not apply retroactively to aliens who, in 

reliance on the availability of § 212(c) relief, pleaded guilty 

(or nolo contendere) to offenses with admissibility or 

removability consequences prior to September 30, 1996. But the IJ 

concluded that because Omar's convictions resulted from a 

trial -- rather than a plea -- the IIRIRA did, consistent with St. 

Cyr, apply retroactively to bar Omar from seeking § 212(c) relief. 

Omar timely appealed that ruling to the BIA. He argued, 

among other things, that the IJ had misconstrued St. Cyr by not 

extending it to apply to convictions rendered after trial. The 
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BIA rejected that argument and affirmed the IJ's decision without 

opinion in a per curiam order dated January 30, 2003. 

Following the BIA's ruling, Omar was removed from the 

United States to Ireland on or about February 14, 2003. On 

February 27, 2003, Omar filed a timely motion for reconsideration 

of the BIA's denial of his appeal. 

In his motion to reconsider, Omar reasserted his right 

to § 212(c) relief on the basis of St. Cyr. On March 31, 2003, 

the BIA denied the motion. The BIA did so summarily, stating that 

"it had considered [Omar's] arguments" and "f[ound] no reason to 

disturb [its prior] decision." Omar does not appear to have 

petitioned this Court for review of either the BIA's denial of his 

appeal or of the BIA's denial of his first motion to reconsider. 

More than a decade later, however, on August 7, 2014, 

Omar filed a second motion to reconsider the BIA's January 2003 

removal order. Omar based this second motion to reconsider on the 

BIA's decision in Matter of Abdelghany, 26 I. & N. Dec. 254 (BIA 

2014). 

There, the BIA held -- relying in part on intervening 

precedent applying St. Cyr -- that § 212(c) relief was available 

to aliens convicted after trial. See id. at 268 ("[W]e are 

convinced that Supreme Court and emerging circuit court precedent 

has superseded the regulatory prohibition against granting section 

212(c) relief under St. Cyr to aliens convicted after trial."). 
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Abdelghany instructed immigration judges going forward to "treat 

deportable lawful permanent residents convicted after trial no 

differently for purposes of section 212(c) eligibility than 

deportable lawful permanent residents convicted by means of plea 

agreements." Id. 

Notwithstanding Abdelghany, the BIA rejected Omar's 

second motion to reconsider. The BIA did so on the grounds that 

his motion was time- and number-barred under 8 U.S.C. 

§ 1229a(c)(5)(B), Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-

593 (1996), and that Omar had failed to show that equitable tolling 

of the time and number bars was warranted. See Neves v. Holder, 

613 F.3d 30, 36 (1st Cir. 2010) (per curiam) ("The equitable 

tolling doctrine extends statutory deadlines in extraordinary 

circumstances for parties who were prevented from complying with 

them through no fault or lack of diligence of their own."). 

Specifically, the BIA held that a change in the law favorable to 

petitioner that "occurr[ed] long after the expiration of 

[petitioner's] filing deadline d[id] not constitute extraordinary 

circumstances justifying equitable tolling." 

Omar now seeks review of the BIA's decision. 

II. 

We review the BIA's denial of a motion to reconsider for 

abuse of discretion, assuming without deciding that equitable 

tolling is available in this context. See Barrios v. Gonzales, 
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136 F. App'x 934, 937 (7th Cir. 2005) (unpublished) (declining to 

decide whether motions to reconsider, as distinct from motions to 

reopen, are subject to equitable tolling); cf. Mata v. Lynch, 135 

S. Ct. 2150, 2155 n.3 (2015); Neves, 613 F.3d at 36 (assuming 

without deciding that the time and number limits applicable to 

motions to reopen are subject to equitable tolling). A denial of 

a motion to reconsider is an abuse of discretion "only when the 

'denial was made without a rational explanation, inexplicably 

departed from established policies, or rested on an impermissible 

basis.'" Bolieiro v. Holder, 731 F.3d 32, 36 (1st Cir. 2013) 

(quoting Martinez-Lopez v. Holder, 704 F.3d 169, 172 (1st Cir. 

2013)). To prevail on a theory of equitable tolling, an individual 

must show "(1) that he has been pursuing his rights diligently, 

and (2) that some extraordinary circumstance stood in his way" and 

prevented timely filing. Neves, 613 F.3d at 36.1

 1 We follow the BIA and the parties in applying the equitable 

tolling framework to assess not only whether Omar's second motion 

to reconsider is time-barred but also whether it is number-barred. 

We question, however, whether equitable tolling is the appropriate 

framework for analyzing whether a second motion to reconsider may 

be considered, as there is no clock to toll with a number bar. 

See 8 U.S.C. § 1229a(c)(6)(A). Accordingly, different 

considerations might bear on the question whether an equitable 

exception should be recognized to a limitation on the number of 

filings an alien may make than would bear on the question whether 

a deadline for making a filing should be equitably tolled. Cf. 

compare 28 U.S.C. § 2255(h) (setting forth standards for allowing 

a "second or successive" federal petition for writ of habeas 

corpus), with Holland v. Florida, 560 U.S. 631, 645, 649 (2010) 

(setting forth equitable tolling standard for late-filed habeas 

petitions). 
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Omar contends that the BIA erred in concluding that the 

circumstances of his case were not sufficiently extraordinary to 

warrant an equitable exception to the time and number bars 

applicable to Omar's motion. And Omar appears to do so by arguing 

that the following circumstances, in combination, make his case an 

"extraordinary" one: (1) he was effectively denied the opportunity 

to file his first motion to reconsider because his removal from 

the United States triggered what is known as the "departure bar," 

which putatively stripped the BIA of jurisdiction to consider that 

motion at the time that he filed it;2 (2) the BIA denied his legal 

argument for § 212(c) relief only via summary rulings; and (3) his 

legal argument was ultimately embraced by the BIA in its subsequent 

decision in Abdelghany. 

We do not agree. In concluding that Omar did not 

overcome the time and number bars that Omar concedes would 

otherwise apply, the BIA did not abuse its discretion. 

First, while Omar suggests that it is inappropriate to 

count his first motion to reconsider for number-bar purposes given 

the applicability of the departure bar, the record indicates that 

the BIA denied Omar's initial motion to reconsider on the merits 

 2 See 8 C.F.R. § 1003.2(d); Matter of Armendarez-Mendez, 24 

I. & N. Dec. 646, 660 (BIA 2008) (affirming the continued validity 

of the departure bar). But see Santana v. Holder, 731 F.3d 50, 61 

(1st Cir. 2013) (overruling Armendarez-Mendez to the extent that 

it interferes with an alien's statutory right to seek reopening of 

a final order of removal). 
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rather than on departure bar grounds. But, in any event, Omar did 

not argue to the BIA in his second motion to reconsider that it 

was really his first such motion due to the departure bar. Nor 

did he argue that the potential application of the departure bar 

to his first motion constitutes an extraordinary circumstance that 

should enable him to bring this motion years after the initial one 

was denied. As a result, Omar's "departure bar"-based argument 

for finding, on equitable tolling grounds, his second motion to 

reconsider not to be time- or number-barred is not properly before 

us. See Silva v. Gonzales, 463 F.3d 68, 72 (1st Cir. 2006) ("Under 

the exhaustion of remedies doctrine, theories insufficiently 

developed before the BIA may not be raised before this court.").3 

Second, the fact that the BIA denied Omar's legal 

arguments through summary means is not itself "extraordinary." 

The BIA did address Omar's original appeal claim through its 

"affirmance without opinion" procedure, but that procedure is a 

permissible one. See 8 C.F.R. 1003.1(e)(4); Albathani v. I.N.S., 

318 F.3d 365, 377-80 (1st Cir. 2003) (holding that the BIA's 

affirmance without opinion procedure does not violate principles 

of due process or administrative law). 

 3 Omar also argues that he was deprived of due process because 

he was denied an opportunity for reconsideration on account of the 

departure bar. But that issue, too, is not properly before us, as 

Omar failed to raise it before the BIA. See Silva, 463 F.3d at 

72. 
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Finally, we are not persuaded by Omar's contention that 

because the BIA did eventually adopt the position underlying his 

legal claim regarding the availability of § 212(c) relief that he 

had unsuccessfully presented to the IJ in 2002 and to the BIA in 

2003, he should be able to present that claim again now. The BIA 

concluded that its forward-looking re-interpretation of the IIRIRA 

in Abdelghany -- based on what the BIA termed "emerging" 

precedent -- did not constitute the kind of extraordinary 

circumstance that would warrant allowing Omar to file a motion to 

reconsider eleven years after the time for filing had passed. In 

light of the BIA's interest in finality, we find no abuse of 

discretion in that ruling here. Cf. Muyubisnay-Cungachi v. Holder, 

734 F.3d 66, 71 (1st Cir. 2013) (noting that motions to reopen 

immigration proceedings "are disfavored as contrary to 'the 

compelling public interests in finality and the expeditious 

processing of proceedings'" (citation omitted)); Whiteside v. 

United States, 775 F.3d 180, 186-87 (4th Cir. 2014) (noting in the 

habeas context that the interest in finality militates against 

construing changes in law as extraordinary for equitable tolling 

purposes).4

 4 We note that in denying Omar's second motion to reconsider, 

the BIA expressly declined to reconsider Omar's case sua sponte. 

That discretionary decision, however, is one that we have no 

jurisdiction to review. See Charuc v. Holder, 737 F.3d 113, 115 

(1st Cir. 2013). 
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III. 

The petition for review of the BIA's denial of Omar's 

second motion to reconsider is DENIED.