Shaquille Kieran Allen v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-13044
Non-Argument Calendar
____________________
SHAQUILLE KIERAN ALLEN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A063-101-734
____________________
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2 Opinion of the Court 23-13044
Before J ORDAN, J ILL PRYOR , and NEWSOM , Circuit Judges.
PER CURIAM:
Shaquille Allen petitions for review of the Board of Immi-
gration Appeals’ (“BIA”) affirmance of the Immigration Judge’s
(“IJ”) denial of his application for asylum pursuant to the Immigra-
tion and Nationality Act (“INA”) § 208(a), 8 U.S.C. § 1158(a), with-
holding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3),
and relief under the United Nations Convention Against Torture
and Other Cruel, Inhuman, or Degrading Treatment or Punish-
ment (“CAT”), 8 C.F.R. § 1208.16(c). He admits that his petition
was untimely filed but argues that we should review the petition
anyway because he failed to receive a copy of the BIA’s decision
and a hurricane prevented him from timely filing. He also moves
to proceed
in forma pauperis (“IFP”). The government moves for
summary disposition, arguing that this Court should dismiss Al-
len’s petition as untimely under 8 U.S.C. § 1252(b)(1). It also moves
to stay the briefing schedule.
We determine
de novo whether we have subject matter ju-
risdiction.
Guzman-Munoz v. U.S. Att’y Gen., 733 F.3d 1311, 1313
(11th Cir. 2013). “Federal courts are obligated to inquire into sub-
ject-matter jurisdiction
sua sponte whenever it may be lacking.”
Bing Quan Lin v. U.S. Att’y Gen., 881 F.3d 860, 866 (11th Cir. 2018)
(quotation marks omitted).
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23-13044 Opinion of the Court 3
A petition for review of an order of removal must be filed
no later than “30 days after the date of the final order of removal.”
INA § 242(b)(1), 8 U.S.C. § 1252(b)(1). An order of removal is final
when the BIA affirms the order or when the time to appeal the or-
der to the BIA expires, whichever is earlier. INA § 101(a)(47)(B), 8
U.S.C. § 1101(a)(47)(B).
Prior to 1996, § 1105a(a)(1) governed the time to file a peti-
tion for review, providing that a petition “may be filed not later
than 90 days after the date of the issuance of the final deportation
order, or, in the case of an alien convicted of an aggravated fel-
ony . . . , not later than 30 days after the issuance of such order.”
INA § 106(a)(1), 8 U.S.C. § 1105a(a)(1) (1995). The statute also re-
quired that review of an order regarding a motion to reconsider or
reopen be consolidated with the review of the underlying agency
order.
Id. § 1105a(a)(6).
In
Stone v. INS, the Supreme Court declined to infer from
§ 1105a(a)(6)’s consolidation requirement that a motion for recon-
sideration of a deportation order suspended the order’s finality.
514 U.S. 386, 405 (1995). It reasoned that “[j]udicial review provi-
sions” like § 1105a(a) “are jurisdictional in nature and must be con-
strued with strict fidelity to their terms.”
Id. The Court explained
that “[t]his is all the more true of statutory provisions specifying
the timing of review, for those time limits are, as we have often
stated, mandatory and jurisdictional, and are not subject to equita-
ble tolling.”
Id. (quotation marks and citation omitted) (citing
Cheng Fan Kwok v. I.N.S., 392 U.S. 206, 212 (1968) (“Section 106(a)
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4 Opinion of the Court 23-13044
is intended exclusively to prescribe and regulate a portion of the
jurisdiction of the federal courts. As a jurisdictional statute, it must
be construed both with precision and with fidelity to the terms by
which Congress has expressed its wishes.”). We have relied on
Stone in stating that the deadline in § 1252(b)(1) is also jurisdictional
and not subject to equitable tolling.
Dakane v. U.S. Att’y Gen., 371
F.3d 771, 773 n.3 (11th Cir. 2004).
In 2006, the Supreme Court adopted the clear-statement
rule, holding that a statute is jurisdictional only if clearly indicated.
Arbaugh v. Y&H Corp., 546 U.S. 500, 502 (2006). The Supreme
Court applied the clear-statement rule, in
Santos-Zacaria v. Gar-
land, in determining whether the exhaustion requirement in
§ 1252(d)(1) is jurisdictional. 598 U.S. 411, 415-17 (2023). It con-
cluded that, because exhaustion requirements are usually claims
processing rules and the statute did not specify any jurisdictional
bar, § 1252(d)(1) is not jurisdictional.
Id. at 417-19. It held that
Stone could not be read to establish that the exhaustion require-
ment is jurisdictional because it predated
Arbaugh and did not ad-
dress the exhaustion requirement.
Id. at 421-22.
Under the prior panel precedent rule, we must follow a prior
binding precedent “unless and until it is overruled by this [C]ourt
en banc or by the Supreme Court.”
United States v. Martinez, 606
F.3d 1303, 1305 (11th Cir. 2010) (quotation marks omitted). As to
subsequent Supreme Court decisions, a later panel may depart
from an earlier decision based on an intervening Supreme Court
decision only if the intervening decision is “clearly on point.”
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23-13044 Opinion of the Court 5
Atlantic Sounding Co. v. Townsend, 496 F.3d 1282, 1284 (11th Cir.
2007) (quotation omitted). Therefore, “that the reasoning of an in-
tervening high court decision is at odds with that of our prior deci-
sion is no basis for a panel to depart from our prior decision.”
Id.
We lack jurisdiction to consider Allen’s petition because it is
untimely, as he filed the petition more than 30 days after the time
to appeal the BIA’s August 1 ruling expired. INA § 242(b)(1), 8
U.S.C. 1252(b)(1);
Dakane, 399 F.3d at 1272 n.3. Under the prior
panel precedent rule, we are obligated to follow
Dakane because
Santos-Zacaria is not clearly on point, as it examined § 1252(d)(1).
Townsend, 496 F.3d at 1284;
Dakane, 399 F.3d at 1272 n.3;
San-
tos-Zacaria, 598 U.S. at 417-19, 421-22. That the Supreme Court’s
reasoning in
Santos-Zacaria may be at odds with our reasoning in
Dakane due to its reliance on
Stone is no basis to depart from
Da-
kane.
Townsend, 496 F.3d at 1284. Notably, the Supreme Court
has not overruled either
Dakane or
Stone.
See Stone, 514 U.S. at
405;
Dakane, 371 F.3d at 773 n.3. While Allen states that he did not
receive a copy of the BIA’s decision and a hurricane prevented him
from timely filing his petition, § 1252(b)(1) is not subject to equita-
ble tolling.
Dakane, 399 F.3d at 1272 n.3.
Accordingly, we DISMISS the petition as untimely. Because
we lack jurisdiction, we DENY as moot the government’s motions
for summary disposition and to stay the briefing schedule and Al-
len’s motion to proceed IFP.
DISMISSED.
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