Edison Mancellari v. Pamela J. Bondi

Mancellari now petitions for our review. He argues that the Board's denial of his motion to reopen was an abuse of discretion because conditions in Albania have deteriorated, his case warrants equitable tolling, and the Board should have exercised its sua sponte authority to reopen. We review the Board's denial of a motion to reopen with significant deference, and that standard of review dictates our holding as to Mancellari's first and second arguments; Mancellari's third argument we cannot review because we lack jurisdiction. We therefore deny in part and dismiss in part Mancellari's petition.

I

The alleged harm giving rise to Mancellari's asylum, withholding of removal, and CAT applications began in 2003 when his 13-year-old sister became engaged to a local mafia leader, Feridon Babaj. Babaj operated near Mancellari's hometown of Pogradec, and Mancellari knew that Babaj's criminal activities included trafficking women. Babaj had promised Mancellari's sister that they would "elope" to Italy without her family's knowledge, so, suspecting that his sister would be trafficked, Mancellari tried to persuade her to end the relationship. Babaj learned of Mancellari's intervention and confronted him, asking him to meet on the outskirts of Pogradec, which Mancellari understood as a threat. Mancellari told his father and uncle, who filed a police report, and Babaj was arrested. But a few hours after his arrest, Babaj showed up at Mancellari's house, demanding $30,000—the amount Babaj purportedly paid to bribe his way out of jail.

To escape Babaj, Mancellari went into hiding at his uncle's house for several months before fleeing to the United States in 2004. Upon arrival, he expressed fear of returning to Albania due to his family's feud with Babaj. Mancellari was issued a Notice to Appear ("NTA") and charged with removability as an alien present in the United States without being admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). After Mancellari left Albania, his father sold the family's home to pay Babaj, but Babaj continued to demand money from the family. Mancellari's uncle tried to confront Babaj and stop the extortion, but Babaj became angry. Shortly thereafter, Mancellari's uncle died under suspicious circumstances, which Mancellari's family attributes to Babaj. In 2005, Mancellari's parents, sister, and brother fled to Greece to escape Babaj;

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however, in 2007, they moved back to Pogradec, and they have lived there since without interference from Babaj.

Mancellari testified about the above events before the IJ in 2007 and 2008, and the IJ found him credible. In support of his applications for withholding of removal, asylum, and CAT relief, Mancellari also submitted a declaration, dated September 2008, from Dr. Bernd Fischer, an expert on Albania. Dr. Fischer opined that organized crime is a persistent issue in Albania, and the Albanian government has only limited control over local mafia leaders. On October 15, 2009, the IJ denied Mancellari's applications and ordered him removed to Albania, finding that Mancellari had not established past or future harm rising to the level of persecution based on a protected characteristic. Mancellari appealed. On January 24, 2012, the Board affirmed the IJ's decision, emphasizing that Mancellari's allegations concerned a personal dispute; Mancellari did not show that the Albanian government was, or would be, unwilling to protect him; Mancellari was never physically harmed in Albania; and Mancellari's family returned to Pogradec after just two years abroad and have not suffered further threats from Babaj. Mancellari then filed a petition for our review, which we denied on May 9, 2013, holding that Mancellari "was threatened but not physically harmed as a result of trying to protect his sister. Persecution involves 'the use of significant physical force . . ., comparable physical harm without direct application of force . . ., or nonphysical harm of equal gravity.' Mancellari does not assert that he personally suffered physical harm[.]" Mancellari, 526 F. App'x at 679 (quoting Stanojkova v. Holder, 645 F.3d 943, 948 (7th Cir. 2011)).

On October 9, 2020, Mancellari filed a motion to reopen his removal proceedings, and, in support of his motion, he included an updated declaration from Dr. Fischer, opining on the evolving role of organized crime in Albania between 2008 and 2020. Mancellari also alleged that since the IJ's denial of his applications for withholding of removal, asylum, and CAT relief, he had become eligible for cancellation of removal, and he had married a lawful permanent resident, which, he argued, might make him eligible for a provisional unlawful presence waiver. On June 18, 2025, the Board denied Mancellari's motion as untimely. Mancellari timely petitioned for our review.

II

"The decision to grant or deny a motion to reopen . . . is within the discretion of the Board[.]" 8 C.F.R. § 1003.2(a). We have jurisdiction to review the Board's grant or

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denial of a motion to reopen. Lopez-Garcia v. Barr, 969 F.3d 749, 752 (7th Cir. 2020). But the Board has "broad discretion in deciding whether to grant a motion to reopen," so we review its decision with significant deference. Salim v. Holder, 728 F.3d 718, 720 (7th Cir. 2013). We "will uphold the [Board]'s decision unless it was 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.'" Id. (quoting Awad v. Ashcroft, 328 F.3d 336, 341 (7th Cir. 2003)). In general, petitioners "may file one motion to reopen proceedings," and the motion must be filed "within 90 days of the date of entry of a final administrative order of removal." 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). There are, however, some exceptions to this 90-day rule, and Mancellari—who filed his motion to reopen eight years after the Board's 2012 decision—attempts to avail himself of three: changed country conditions, equitable tolling, and the Board's sua sponte authority to reopen. First, a petitioner may move to reopen outside of the 90-day window "based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous hearing." 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). Mancellari argues that the Board abused its discretion in declining to excuse his late motion on this basis, but Mancellari failed to show that his risk of persecution and torture by Babaj has increased due to changed country conditions. True, Dr. Fischer's 2020 declaration concluded that "Albanian organized crime plays an increasingly important role in international crime," and

"because the power of crime has significantly increased since [Mancellari's] last hearing, he is in more danger now than he was then." But this might be true as to any Albanian; there is nothing in the report about any danger that Mancellari faces from Babaj specifically.

Further, Dr. Fischer's conclusions, even if credited, "do not demonstrate new or changed circumstances suggesting that the government of [Albania] is now unwilling or unable to protect [Mancellari] against the type of harassment of which he complains." See Salim, 728 F.3d at 721. That is, they say nothing of the Albanian government's ability to reign in Babaj. See Ingmantoro v. Mukasey, 550 F.3d 646, 650 (7th Cir. 2008) ("[T]he acts of private citizens do not constitute persecution unless the government is complicit in those acts or is unable or unwilling to take steps to prevent them") (quoting Chakir v. Gonzales, 466 F.3d 563, 570 (7th Cir. 2006)); see also Marquez v. I.N.S., 105 F.3d 374, 380 (7th Cir. 1997) (a "personal dispute, no matter how nasty,

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cannot support an alien's claim of asylum."). As a result, the alleged change of conditions is not "material to [Mancellari's] entitlement to deferral of removal," which is to say, not "material to his risk of torture" or his risk of persecution based on his membership in the particular social group of his family. See Menghistab v. Garland,

37 F.4th 1240, 1246-47 (7th Cir. 2022); cf. Urias-Orellana v. Bondi, 607 U.S. ___, 146 S. Ct. 845, 852-54 (2026) (administrative determinations as to a petitioner's fear of future persecution require deference from the courts).

In addition, Mancellari's evidence of increasing organized crime in Albania evinces a mere "'cumulative worsening' of circumstances," which is not enough to rise to the level of "changed country conditions." Meriyu v. Barr, 950 F.3d 503, 506 (7th Cir. 2020) (quoting Boika v. Holder, 727 F.3d 735, 739 (7th Cir. 2013)); see also Zhao v. Gonzales,

440 F.3d 405, 407 (7th Cir. 2005) ("[C]umulative evidence that conditions asserted in the original application persisted is not evidence of changed circumstances.") (internal quotation omitted). In fact, Dr. Fischer's 2008 declaration stated that organized crime

"continues to be one of the most pressing problem[s] faced by the Albanian state today." When evaluating evidence on a motion to reopen, "we compare the evidence of country conditions submitted with the motion to those that existed at the time of the merits hearing below," Boika, 727 F.3d at 738-39, so this mere "proof that an old condition has continued does not suffice," Kucana v. Holder, 603 F.3d 394, 397 (7th Cir. 2010). The Board's determination that Mancellari's evidence of changed country conditions did not warrant reopening was therefore not an abuse of discretion. Second, under certain circumstances, the Board may equitably toll the 90-day deadline. Pervaiz v. Gonzales, 405 F.3d 488, 490 (7th Cir. 2005) (holding that a deadline under § 1229a "is merely a statute of limitations and is therefore subject to equitable tolling"). "[T]he test for equitable tolling . . . is not the length of the delay in filing the complaint or other pleading; it is whether the claimant could reasonably have been expected to have filed earlier." Id. (citing Williams v. Sims, 390 F.3d 958, 960 (7th Cir. 2004)). Mancellari argues that the Board should have equitably tolled the 90-day deadline based on his newfound eligibility for cancellation of removal. He insists that because the NTA that initiated his removal proceedings in 2004 did not include a date, time, or place for him to appear, it was insufficient to trigger the statutory stop-time rule under 8 U.S.C. § 1229b(d)(1)(A). As a result, he argues that he has been accruing continuous physical presence in the United States since 2004, and by the time he moved to reopen, he had accrued the requisite 10 years under § 1229b(b)(1)(A) to be eligible for cancellation of removal. See Pereira v. Sessions, 585 U.S. 198, 208-09 (2018) ("A putative notice to appear that fails to designate the specific time or place of the non-citizen's

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removal proceedings is not a 'notice to appear under § 1229(a),' and so does not trigger the stop-time rule.").

Although we may take it as a given that Mancellari is now eligible to seek cancellation of removal, our precedent precludes his argument that his delay in moving to reopen his removal proceedings should be excused. Mancellari entered the United States in 2004, which means he became eligible for cancellation of removal in 2014.

8 U.S.C. § 1229b(b)(1)(A). Instead of seeking reopening then or reasonably soon thereafter, he waited another six years, arguing only that he could not have sought reopening on this basis pre-Pereira. But "our post-Pereira cases foreclose that line of argument[,]" and "make clear to the contrary that such a defect in the notice to appear was always evident as a matter of what the statute's plain language required," so

"nothing prevented" him from making this argument in 2014. Mejia-Padilla v. Garland,

2 F.4th 1026, 1030-31 (7th Cir. 2021); see also United States v. Manriquez-Alvarado, 953 F.3d 511, 513 (7th Cir. 2020) ("Pereira interpreted a statute that long predates 2008," and petitioner "was free to rely on that statute."). The Board therefore did not abuse its discretion in determining that Mancellari could reasonably have been expected to seek reopening earlier such that equitable tolling was not warranted. See Mejia-Padilla, 2 F.4th at 1031 ("These [post-Pereira] cases also make plain why [petitioner] cannot rely on equitable tolling to excuse the lateness of his motion to reopen."); see also Manriquez- Alvarado, 953 F.3d at 513 ("The best way to determine whether a remedy works is to use it and see what happens, rather than to bypass it and speculate years later about what might have happened.").

Third, the Board may reopen removal proceedings sua sponte. See 8 C.F.R. § 1003.2(a) ("The Board may at any time reopen . . . on its own motion any case in which it has rendered a decision."). Exercise of the Board's sua sponte authority to reopen removal proceedings typically requires the petitioner to demonstrate "extraordinary situations"—criteria for which "the Board has not established any sort of comprehensive standard or list of factors." Anaya-Aguilar v. Holder, 683 F.3d 369, 372-73 (7th Cir. 2012). Mancellari argues that his marriage to a lawful permanent resident constitutes the sort of "extraordinary situation" warranting reopening, but the Board's

"failure to reopen sua sponte is an unreviewable discretionary decision," id. at 373, unless it was "tainted by a legal error," Cruz-Velasco v. Garland, 58 F.4th 900, 904 (7th Cir. 2023). Here, the Board's decision contained some factual errors—such as asserting Mancellari had provided no evidence of his marriage and claiming that Mancellari also sought adjustment of status under 8 U.S.C. § 1255(a)—but it contained no legal errors. And no improved recitation of the facts would change our inability to review the

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Board's discretionary decision as to whether to exercise its sua sponte authority. See Malukas v. Barr, 940 F.3d 968, 971 (7th Cir. 2019) ("What rule of law requires the [Board] to say more than 'denied' in response to a motion about a subject over which it possesses unbridled discretion? Why would an explanation, when given, permit judicial review of a subject committed to agency discretion?"). Therefore, we lack jurisdiction to review Mancellari's arguments as to the Board's sua sponte authority. As nothing in the record suggests that the Board abused its discretion, and we lack jurisdiction to review one of Mancellari's arguments, we DENY in part and DISMISS in part Mancellari's petition for review.

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