Hernel Silais v. WILLIAM P. BARR, Attorney General of the United States

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 12, 2019
Decided June 19, 2019
Before
DIANE P. WOOD, Chief Judge
AMY C. BARRETT, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 18‐2981
HERNEL SILAIS,
Petitioner,
v.
WILLIAM P. BARR,
Attorney General of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A 200 567 560
O R D E R
Hernel Silais, a Haitian citizen, seeks review of the denial of his untimely motion
to reopen a removal proceeding. Because the Board of Immigration Appeals reasonably
concluded that Silais failed to establish a valid reason to toll the 90‐day deadline for his
motion, we deny the petition for review.
This case is before us for a third time. Silais entered the United States in 2011 and
requested asylum, withholding of removal, and protection under the Convention
Against Torture. He claimed that he feared persecution by the Chimères (an armed,
politically affiliated gang) if returned to Haiti. After a hearing, the Immigration Judge
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

-- 1 of 5 --

No. 18‐2981 Page 2
denied relief because of inconsistencies in Silais’s testimony and a lack of corroborating
evidence. See 8 U.S.C. § 1158(b)(1)(B)(ii). Specifically, the IJ faulted Silais for failing to
attach affidavits from family members or coworkers that would corroborate his account
of his run‐ins with the Chimères and for failing to provide contemporaneous medical
records supporting his claim that he need18‐2981ed treatment for injuries. The Board
upheld that decision in 2015, agreeing that Silais had not provided—or adequately
explained the absence of—corroborating evidence for these critical aspects of his claim.
Silais petitioned for review, to no avail. Silais v. Sessions, 855 F.3d 736 (7th Cir.
2017). To Silais’s argument that the IJ erred by not warning him in advance that
particular corroborating evidence would be needed, we responded that a statute—the
REAL ID Act, 8 U.S.C. § 1158(b)(1)(B)(ii)—gives effective notice to all petitioners that
the IJ may require corroborating evidence or demand an explanation for its absence at a
hearing. Id. at 745–46 (citing Darinchuluun v. Lynch, 804 F.3d 1208, 1216 n.21, 1216–17
(7th Cir. 2015)).
More than 100 days after we issued our opinion, and two years after the Board’s
underlying decision, Silais filed a motion to reopen or reconsider his case. But a motion
to reconsider must be filed within 30 days of the Board’s mailing of its decision, 8 C.F.R.
§ 1003.2(b)(2), and a motion to reopen must be filed within 90 days of the entry of the
challenged final administrative decision, id. § 1003.2(c)(2). Silais nonetheless argued that
(1) a 2015 change in Board precedent warranted reopening under the Board’s sua sponte
power, see id. § 1003.2(a); and (2) the lack of meaningful advance notice that particular
corroborating evidence would be required at the IJ hearing should equitably toll the
deadline for later seeking to reopen. Silais further contended that the Board should
reopen his case to consider “new” evidence, which included affidavits from family
members that detailed the treatment that he received in Haiti. He claimed that this
evidence was previously unavailable because he was estranged from his family and had
a difficult time locating his very mobile sister.
The Board disagreed with Silais, reasoning that his untimely motion did not meet
any statutory exception to the 90‐day filing deadline. See 8 C.F.R. § 1003.2(c)(3).
Equitable tolling, however, went unmentioned in the Board’s decision. As for the
supposed change in law that Silais relied on, Matter of L‐A‐C‐, 26 I. & N. Dec. 516 (BIA
2015), the “new” precedent did not warrant sua sponte reopening because it actually
reaffirmed that an IJ is not required to give an applicant advance, pre‐hearing notice of
what specific corroborating evidence will be required. Id. at 527. The Board added that

-- 2 of 5 --

No. 18‐2981 Page 3
Silais had failed to explain why his motion to reopen the Board’s 2015 decision could
not have been filed sooner than 2017.
Silais turned to this court with a second petition for review. This time, however,
the government moved to remand the proceedings to the Board for “further
explanation” on the equitable‐tolling question. We granted the government’s motion.
Finally, in a new decision—the subject of this petition for review—the Board
clarified its stance that Silais had not demonstrated the requisite diligence for equitable
tolling. Specifically, Silais had not explained why he waited nearly two years after the
Board’s 2015 decision—and more than 100 days after this court issued its first decision
in Silais, 855 F.3d 736—to file his motion. Silais had been on notice of the need for
corroborating evidence since the IJ released its decision in 2014, the Board concluded,
and nothing about the ensuing proceedings in this court changed that need. The Board
again declined to exercise its authority to reopen the proceedings sua sponte, for the
same reasons stated in its first denial. Once more, Silais petitioned this court for review.
Ordinarily, a petitioner must file a motion to reopen within 90 days of the
Board’s final administrative decision. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.
§ 1003.2(c)(2); Fuller v. Whitaker, 914 F.3d 514, 519 (7th Cir. 2019). Here, the Board issued
its final administrative decision (upholding the IJ’s decision) in 2015, and Silais filed his
motion to reopen two years later. Because Silais sought reopening long after the 90‐day
limit expired, his only recourse was to request that the Board equitably toll that
deadline or use its sua sponte powers to help him. Fuller, 914 F.3d at 519.
Silais first argues that the Board’s decision denying equitable tolling failed to
analyze in sufficient detail whether the evidence that he now submits—affidavits from
family members corroborating his tale of run‐ins with the Chimères in the 2000s—was
“previously unavailable.” Our review of the Board’s denial of equitable tolling is
limited to correcting abuses of discretion. Yusev v. Sessions, 851 F.3d 763, 767 (7th Cir.
2017). To equitably toll the 90‐day deadline, Silais needed to establish due diligence—
that is, that he could not have reasonably been expected to file the motion to reopen
earlier. See El‐Gazawy v. Holder, 690 F.3d 852, 859 (7th Cir. 2012); Pervaiz v. Gonzales,
405 F.3d 488, 490 (7th Cir. 2005).
In his motion to reopen, Silais averred that he did not know what sort of
corroborating evidence would be required until the government briefed his first
petition here in 2017. But as the Board explained when rejecting this argument, explicit

-- 3 of 5 --

No. 18‐2981 Page 4
notice of the need for corroborating evidence came much earlier: when the IJ issued its
decision in 2014, and again when the Board affirmed that decision in 2015. Nothing
about the proceedings in this court updated the nature of the corroboration requirement
or the Board’s 2015 decision on that point.
Besides, even if the corroborating evidence that Silais attached to his motion
really were unavailable in 2014 and before, he still failed to specify why it took him
until 2017 to obtain these pieces of evidence. Not once before the IJ or the Board did
Silais contend that he had tried to contact his sisters but was unable to do so. If he had
made such a showing, this might be a different case. Additionally, Silais did not explain
why it took him more than 90 days after we published our first decision to file his
motion. Nor have those deficiencies been cured in his briefs. Thus, we cannot say that
the Board abused its discretion in concluding that Silais failed to establish due diligence.
See Patel v. Gonzales, 442 F.3d 1011, 1016 (7th Cir. 2006) (concluding that petitioner “did
not have to acquire actual knowledge of all of the consequences of the Board’s final
order before the clock could start to run for equitable tolling purposes”).
Silais also argues that the Board failed to analyze whether the “new”
corroborating evidence was “previously unavailable” under 8 C.F.R. § 1003.2(c)(1). But
that regulatory standard, if met, merely allows the Board to grant a motion to reopen if
it was filed within 90 days of the underlying decision. Id. § 1003.2(c)(2). The Board’s
conclusion that Silais did not act diligently enough to warrant sua sponte reopening of
its two‐year‐old decision could not, and did not, violate § 1003.2(c)(1). And the question
before the Board was whether Silais had demonstrated diligence since 2015, so pointing
to Silais’s lack of argument about why he first gathered and submitted the evidence in
2017 was enough to support the Board’s decision.
Relatedly, Silais contends that the Board erred by not using its sua sponte
authority to reopen the proceeding. But we do not have the power to review the
equities of the Board’s decision to not exercise its sua sponte prerogative. See Fuller,
914 F.3d at 519 (“[T]here is no meaningful standard by which to evaluate the exercise of
the Board’s discretion, and consequently the merits of the Board’s decision to deny a
motion to reopen sua sponte are unreviewable.”). To be sure, the court may review “a
plausible constitutional or legal claim that the Board misapplied a legal or constitutional
standard” in its decision on sua sponte reopening, Anaya‐Aguilar v. Holder, 697 F.3d 1189,
1190 (7th Cir. 2012); 8 U.S.C. § 1252(a)(2)(D), but Silais has not made such an argument.
And while he asserts that the Board’s decision was so thinly reasoned that it violates

-- 4 of 5 --

No. 18‐2981 Page 5
administrative law’s basic requirement that an agency explain itself, the Board’s
reasoning was clear enough.
Silais then suggests that we overrule our decision in Darinchuluun v. Lynch,
804 F.3d 1208 (7th Cir. 2015), which held that advance, pre‐hearing notice of a need for
specific corroboration is not required. This decision, he argues, is inconsistent with the
REAL ID Act’s plain language and with international refugee law. Finally, he argues
that the Constitution requires an IJ to give notice of the need for particular types of
corroborating evidence. As the government notes, however, the place to litigate these
issues was in Silais’s first petition for review. Even setting aside the parties’ dispute
about whether Silais’s interpretive theories are barred by issue or claim preclusion, they
have no bearing on the narrow questions before us: whether Silais was entitled to
equitable tolling on his motion to reopen, and alternatively whether the Board abused
its discretion in declining to exercise its power to reopen sua sponte.
The Board did not abuse its discretion in declining to grant Silais’s untimely
motion to reopen. We therefore DENY the petition for review.

-- 5 of 5 --