20 F.4th 818
3d Cir.2021Background
- Arfan Yasin, a Pakistani national, last entered the U.S. in August 2000, conceded removability, and received a final order of removal affirmed by the BIA in 2002.
- In 2016 Yasin married a U.S. citizen; in January 2017 the couple had a U.S. citizen daughter diagnosed with gross developmental motor delays requiring ongoing medical care.
- Yasin alleged he suffered psychological abuse by his spouse, filed a VAWA I-360 self-petition in August 2017, and the I-360 was approved in September 2019.
- In December 2019 (over 17 years after his final order) Yasin filed a sua sponte motion to reopen with the BIA, seeking a statutory waiver of the VAWA 1-year limitations period under 8 U.S.C. §1229a(c)(7)(C)(iv)(III) based on his daughter’s hardship and equity.
- The BIA denied the motion, concluding Yasin did not demonstrate the extraordinary circumstances or extreme hardship required to waive the 1-year deadline; Yasin timely petitioned the Third Circuit for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction under 8 U.S.C. §1252(a)(2)(B)(ii) to review the BIA’s denial of a VAWA-based waiver of the 1‑year reopening deadline | Yasin argued the denial is reviewable (and raised arguments about BIA’s legal errors and settled practice limits) | Government: Congress committed waiver decisions to the Attorney General’s statutory discretion, so §1252(a)(2)(B)(ii) strips appellate jurisdiction | Court: Lacks jurisdiction to review the discretionary denial of the VAWA waiver because Congress statutorily committed that discretion to the Attorney General (Kucana governs) |
| Whether the "settled course" exception limits BIA discretion so that the denial is reviewable | Yasin: BIA has an established practice of reopening when a movant shows prima facie VAWA eligibility and extreme child hardship | Gov: BIA has not limited its discretion; prior decisions cited by Yasin show the opposite or are insufficient | Court: Exception does not apply; Yasin failed to show the BIA has limited its discretion or a settled course of adjudication |
| Whether a colorable constitutional or pure legal claim exists such that §1252(a)(2)(D) preserves review | Yasin: BIA applied incorrect legal premise and acted irrationally (implying legal/constitutional error) | Gov: No colorable constitutional or pure legal question; arguments are merits-based or insubstantial | Court: No colorable constitutional or pure legal claim was presented; §1252(a)(2)(D) does not rescue jurisdiction |
| Whether the BIA abused its discretion on the merits in denying the waiver (extraordinary circumstances/extreme hardship) | Yasin: Daughter’s medical needs and his primary caregiver role establish extreme hardship and equitable grounds to reopen | Gov: Evidence insufficient to meet the statutory standard; BIA’s discretion not abused | Court: Did not reach merits because it lacked jurisdiction to review the discretionary waiver decision |
Key Cases Cited
- Kucana v. Holder, 558 U.S. 233 (statutory grants of discretionary authority to the Attorney General can strip judicial review; distinguishes statutory from regulatory discretion)
- Twum v. Barr, 930 F.3d 10 (1st Cir.) (VAWA waiver decisions committed to AG discretion and beyond appellate review)
- Joseph v. Lynch, 793 F.3d 739 (7th Cir.) (same: §1229a(c)(7)(C)(iv)(III) waiver decisions not reviewable)
- Sang Goo Park v. Att’y Gen., 846 F.3d 645 (3d Cir.) (explains the "settled course" exception and its evidentiary threshold)
- Darby v. Att’y Gen., 1 F.4th 151 (3d Cir.) (discusses exceptions to jurisdictional bar where BIA applied incorrect legal premise)
- Calle-Vujiles v. Ashcroft, 320 F.3d 472 (3d Cir.) (no jurisdiction to review BIA’s refusal to exercise sua sponte reopening authority)
- Guo v. Ashcroft, 386 F.3d 556 (3d Cir.) (motions to reopen reviewed for abuse of discretion; standards of review)
- Borges v. Gonzales, 402 F.3d 398 (3d Cir.) (substantial evidence standard for BIA factual findings)