Felicia Zeah v. Loretta E. Lynch
828 F.3d 699
| 8th Cir. | 2016Background
- Felicia Zeah, a Nigerian national, entered the U.S. in 1985 and remained except for brief trips; earlier marriage to obtain immigration benefits was found to be a sham by USCIS.
- Zeah was placed in removal proceedings in 2008, conceded removability, applied for cancellation of removal, and was denied by an IJ in 2010; BIA affirmed in 2012 and this court denied review in 2014.
- In May 2015 — over two years after the final administrative decision — Zeah moved to reopen to seek asylum, withholding, and CAT protection, citing changed country conditions in Nigeria due to Boko Haram.
- Zeah alleged past persecution (including female genital mutilation) and a well-founded fear of future persecution as a woman and Christian because of Boko Haram violence (including the 2014 mass kidnapping of schoolgirls).
- The BIA denied the motion as untimely, finding Zeah failed to show a material change in country conditions to excuse the 90-day filing limit, and took administrative notice of a 2009 State Department report showing prior Boko Haram atrocities.
- The Eighth Circuit reviews the denial for abuse of discretion and affirmed, holding Zeah failed to meet the material-change exception and thus her motion to reopen was untimely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA violated due process by taking administrative notice of the 2009 State Dept. country report | Zeah: administrative notice of 2009 report denied opportunity to rebut and infringed due process | BIA/DHS: administrative notice of country reports is permitted and Zeah had submitted the report previously | Court: No due process violation; administrative notice appropriate and Zeah had the report in the record |
| Whether BIA applied wrong standard instead of "material change" to excuse 90-day limit | Zeah: BIA demanded a novel/new type of harm rather than material country change | BIA/DHS: required showing of material change in country conditions since merits hearing; movant bears burden | Court: BIA applied correct "material change" standard; no abuse of discretion |
| Whether Zeah showed changed country conditions from Boko Haram sufficient to reopen | Zeah: Boko Haram violence (kidnapping, territorial control, displacement) is a material change since 2010 | BIA/DHS: evidence shows Boko Haram violence existed prior to 2010; Zeah failed to supply pre-2014 baseline to show change | Court: Zeah failed to show material change; motion untimely |
| Whether court needed to address prima facie asylum merits or government protection evidence | Zeah: BIA misapplied standards on relocation, government inability vs. unwillingness, and well-founded fear | BIA/DHS: merits not reached because motion untimely; even so BIA applied proper standards | Court: Declined to reach merits because timeliness failure dispositive; affirmed BIA denial |
Key Cases Cited
- Quinteros v. Holder, 707 F.3d 1006 (8th Cir.) (standard of abuse-of-discretion review for motions to reopen)
- Guled v. Mukasey, 515 F.3d 872 (8th Cir.) (grounds for overturning BIA decision)
- INS v. Abudu, 485 U.S. 94 (U.S. Supreme Court) (motions to reopen are disfavored; public interest in finality)
- Poniman v. Gonzales, 481 F.3d 1008 (8th Cir.) (concern about endless delay from liberal reopening)
- Gebremaria v. Ashcroft, 378 F.3d 734 (8th Cir.) (finality concerns and motions to reopen)
- Zhong Qin Zheng v. Mukasey, 523 F.3d 893 (8th Cir.) (material-change exception requires evidence showing conditions changed since prior hearing)
- Francois v. INS, 283 F.3d 926 (8th Cir.) (approving BIA use of administrative notice including country reports)
- Vargas v. Holder, 567 F.3d 387 (8th Cir.) (disagreement over evidence interpretation does not equal abuse of discretion)
- Zeah v. Holder, 744 F.3d 577 (8th Cir.) (prior denial of Zeah’s petition for review)