Fadhily Mshihiri v. Eric H. Holder, Jr.
753 F.3d 785
| 8th Cir. | 2014Background
- Mshihiri, a Tanzanian national, entered the U.S. in 2003 on an F-1 student visa, later married U.S. citizen Hulda Jean; USCIS concluded that marriage was a sham and Jean withdrew the I-130.
- After falling out of full-time student status, DHS issued an NTA in 2004 and removal proceedings began; Mshihiri conceded removability.
- In December 2005 Mshihiri married Pamela Wilbourn; Wilbourn’s I-130 was approved in June 2006 but USCIS revoked that approval in March 2007 citing the earlier sham marriage.
- At the August 22, 2012 merits hearing, Mshihiri failed to follow biometric instructions and refused to proceed; the IJ deemed his asylum/withholding/CAT claims abandoned and ordered removal; the IJ pretermitted denial of adjustment due to revocation of Wilbourn’s I-130.
- Mshihiri appealed to the BIA; the BIA affirmed (Feb 14, 2013). He moved to reopen/reconsider; the BIA denied that motion (May 6, 2013) and later denied a separate motion as untimely (July 29, 2013).
- This petition for review was filed June 5, 2013; the court held it lacked jurisdiction to review the Feb 14 BIA order (untimely) and limited review to the May 6, 2013 denial of the motion to reopen/reconsider.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction over Feb 14 BIA order | Mshihiri sought review of the BIA’s affirmance of the IJ’s removal order | Government argues petition filed >30 days after Feb 14 final order, so untimely | Court: No jurisdiction to review Feb 14 order (petition untimely) |
| BIA denial of motion to reconsider | Mshihiri argued BIA erred by not reconsidering revocation of Wilbourn’s I-130 and by accepting IJ’s requests for extra evidence | BIA: motion to reconsider must point to legal/factual errors in prior BIA decision; revocation decision was not before the BIA | Court: BIA did not abuse discretion; motion to reconsider failed to identify errors in prior decision |
| BIA denial of motion to reopen | Mshihiri submitted Jean’s 2006 affidavit alleging USCIS coercion as new evidence supporting adjustment eligibility | Government: affidavit was previously available to USCIS (not new) and even if considered, does not establish entitlement to adjustment because no approved I-130 exists | Court: BIA did not abuse discretion; evidence was not newly unavailable or material to entitlement to relief |
| IJ jurisdiction based on timing of NTA | Mshihiri contends NTA issued prematurely (before five-month reinstatement window expired) so IJ lacked jurisdiction | Government: falling out of status makes alien removable; filing an NTA vests IJ jurisdiction regardless of timing | Court: Reply brief considered but argument unpersuasive; NTA vested IJ jurisdiction and did not divest court of authority |
Key Cases Cited
- Hanan v. Mukasey, 519 F.3d 760 (8th Cir. 2008) (federal-court review of BIA decisions)
- De Jimenez v. Ashcroft, 370 F.3d 783 (8th Cir. 2004) (jurisdiction over final orders of removal)
- White v. INS, 6 F.3d 1312 (8th Cir. 1993) (timeliness requirement for petitions is mandatory and jurisdictional)
- Skurtu v. Mukasey, 552 F.3d 651 (8th Cir. 2008) (statutory filing deadline is jurisdictional)
- Stone v. INS, 514 U.S. 386 (Supreme Court 1995) (motions to reopen do not toll the time to file a petition for review)
- Quinteros v. Holder, 707 F.3d 1006 (8th Cir. 2013) (standard of review for BIA denial of motions to reopen/reconsider)
- Poniman v. Gonzales, 481 F.3d 1008 (8th Cir. 2007) (grounds on which BIA may deny motion to reopen)