Bbale v. Lynch
2016 U.S. App. LEXIS 19161
| 1st Cir. | 2016Background
- Petitioner Douglas Jimmy Bbale, a Ugandan national, overstayed a six-month U.S. visitor admission and was placed in removal proceedings years later; he conceded removability in 2012.
- Bbale filed for adjustment based on marriage, withdrew after USCIS issued a notice of intent to revoke, then applied for asylum and withholding of removal alleging political persecution (family targeted for opposition to Ugandan President Museveni; his brother prosecuted on alleged witchcraft charges).
- An immigration judge denied asylum as untimely and denied withholding of removal after a January 27, 2014 merits hearing; the BIA dismissed his appeal on June 10, 2015.
- Bbale moved to reopen (Aug. 10, 2015), claiming new evidence: his niece (who received asylum in 2012) was mentally incapacitated and could not testify at the merits hearing; he submitted a medical report and asserted the niece’s asylum grant supported his claim.
- The BIA denied the motion, finding Bbale failed to present new, previously unavailable, material evidence and that the medical report did not show the niece was unable to testify; Bbale petitioned for judicial review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA abused discretion by denying motion to reopen for lack of new, material evidence | Bbale: niece’s asylum grant and her incapacity (trauma) are new, material evidence; she could not testify at hearing | Govt/BIA: niece’s asylum and statements predated the hearing and were known; medical report insufficient; Bbale’s motion lacked affidavits/detail | No abuse of discretion; motion denied (evidence not new/previously unavailable) |
| Whether Bbale satisfied procedural requirements for a motion to reopen (stating new facts and supporting affidavits) | Bbale: confidentiality concerns about asylum file precluded disclosure; proffer otherwise adequate | BIA: motion failed to state the substance of expected testimony and lacked affidavits or evidentiary material as required by 8 C.F.R. §1003.2(c)(1) | Motion procedurally deficient; failure to describe proffered testimony and supply affidavits fatal |
| Whether niece’s prior letter and asylum grant qualify as newly available, material evidence | Bbale: niece’s 2012 asylum grant and subsequent statements show corroboration and fear for Bbale’s safety | BIA/Govt: niece’s asylum and her September 2013 letter were in the record before the January 2014 hearing, so not new; statements are cumulative | Not new or previously unavailable; cumulative evidence does not warrant reopening |
| Whether medical report established niece’s incapacity to testify at the merits hearing | Bbale: Dr. Husson’s report shows niece was psychologically unable to testify in January 2014 | BIA/Govt: report does not state she was unable to testify; letter from niece in Sept. 2013 undermines alleged incapacity | Medical report did not establish inability to testify; does not cure other defects |
Key Cases Cited
- Roberts v. Gonzales, 422 F.3d 33 (1st Cir. 2005) (motions to reopen are disfavored; BIA has broad discretion)
- Falae v. Gonzáles, 411 F.3d 11 (1st Cir. 2005) (finality and expeditious processing justify narrow reopening standards)
- INS v. Doherty, 502 U.S. 314 (U.S. 1992) (BIA enjoys wide latitude on reopening decisions)
- Perez v. Holder, 740 F.3d 57 (1st Cir. 2014) (requirements for reopening: new material evidence and prima facie eligibility)
- Jutus v. Holder, 723 F.3d 105 (1st Cir. 2013) (reaffirming standards for motions to reopen)
- Jupiter v. Ashcroft, 396 F.3d 487 (1st Cir. 2005) (pleadings’ factual assertions are not substitute for affidavits/evidence)
- Morgan v. Holder, 634 F.3d 53 (1st Cir. 2011) (cumulative evidence is not "new" for reopening purposes)
- Raza v. Gonzales, 484 F.3d 125 (1st Cir. 2007) (judicial review of BIA reopening decisions is for abuse of discretion)