Gulnara Gafurova v. Matthew Whitaker
911 F.3d 321
| 6th Cir. | 2018Background
- Petitioner Gulnara Gafurova, a citizen of Uzbekistan, filed asylum in the U.S.; after multiple proceedings the BIA denied her request to file a second asylum application and ordered removal to Uzbekistan.
- Gafurova previously had an asylum frivolous finding reversed by the BIA and unsuccessfully sought review in the Second Circuit; she later filed a second motion to reopen based on changed country conditions and recent case law.
- In February 2017 she moved to reopen, submitting exhibits (F–J) alleging that Uzbekistan now persecutes asylum-seekers broadly, including evidence of torture and fabricated extremism charges used to extradite and torture claimants.
- She argued the Sixth Circuit’s Yousif decision required remand, claimed breach of asylum confidentiality when the Second Circuit published its summary opinion, and requested a three-member BIA panel to decide the motion.
- The BIA, acting through a single member, denied reopening: (1) the exhibits were not new or material showing individualized risk; (2) Yousif was distinguishable; (3) no confidentiality breach under the asylum regs; and (4) denial of the three-member panel request.
- The Sixth Circuit denied review, holding the BIA did not abuse its discretion on the new-evidence and panel-assignment issues and that other arguments were forfeited or inapplicable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether new evidence shows changed country conditions sufficient to reopen a second motion | Gafurova: exhibits show Uzbekistan now persecutes asylum-seekers generally and thus are new, material evidence warranting reopening | Gov’t: exhibits were discoverable earlier and do not show individualized risk to Gafurova; they concern extradition-linked claimants, not her | Denied — BIA didn’t abuse discretion; evidence not shown to be previously unavailable or to demonstrate individualized fear |
| Whether Yousif requires remand of Gafurova’s case | Gafurova: Yousif’s holding on frivolousness/materiality mandates reconsideration here | Gov’t: Yousif is factually and legally distinguishable; prior frivolous finding already reversed in Gafurova’s case | Denied — Yousif distinguishable; no error in BIA’s application |
| Whether publication of Second Circuit summary opinion breached asylum confidentiality and warrants reopening | Gafurova: publication was a breach and is a discretionary factor favoring reopening | Gov’t: publication did not violate 8 C.F.R. confidentiality provisions as applied; no prejudice shown | Forfeited/Not persuasive — BIA’s confidentiality conclusion not meaningfully challenged; argument inadequately developed |
| Whether assignment to a single BIA member (not a three-member panel) is reviewable and was proper | Gafurova: screening panel should have used non-discretionary standards to require three-member panel if §1003.1(e)(6) standards met | Gov’t: assignment to a single member is within BIA discretion under §§1003.2(i) and 1003.1(e)(6) | Mixed: Court holds assignment decision is judicially reviewable for compliance with BIA regulations, but here BIA did not abuse discretion in assigning a single member |
Key Cases Cited
- Yousif v. Lynch, 796 F.3d 622 (6th Cir. 2015) (clarifies proper materiality standard for frivolousness determinations in asylum cases)
- Trujillo Diaz v. Sessions, 880 F.3d 244 (6th Cir. 2018) (standard of review for BIA denials of motions to reopen)
- Alizoti v. Gonzales, 477 F.3d 448 (6th Cir. 2007) (review of BIA motions-to-reopen denials)
- Harchenko v. INS, 379 F.3d 405 (6th Cir. 2004) (changed-country-conditions motion requires individualized fear evidence)
- Zhang v. Mukasey, 543 F.3d 851 (6th Cir. 2008) (BIA may deny reopening for failure to make prima facie case, lack of new material evidence, or discretion)
- INS v. Doherty, 502 U.S. 314 (U.S. 1992) (grounds for BIA denial of motions to reopen)
- INS v. Abudu, 485 U.S. 94 (U.S. 1988) (motions to reopen properly denied when they do not present previously unavailable material evidence)
- Lincoln v. Vigil, 508 U.S. 182 (U.S. 1993) (agency action committed to discretion must have no judicially manageable standards)
- Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361 (U.S. 2018) (agency discretion reviewability principles)
- Heckler v. Chaney, 470 U.S. 821 (U.S. 1985) (APA exceptions to judicial review for agency action)
- Wilson v. Comm’r of Soc. Sec. Admin., 378 F.3d 541 (6th Cir. 2004) (agencies must follow their own regulations)