Gyamfi v. Whitaker
913 F.3d 168
| 1st Cir. | 2019Background
- Gyamfi, a Ghanaian national who overstayed a B-2 visa, was ordered removed in 2013; the BIA affirmed in 2014 and she did not seek judicial review then.
- In November 2015 Gyamfi’s U.S. citizen daughter filed an I-130 on Gyamfi’s behalf; DHS approved that petition in April 2016.
- Gyamfi filed a motion to reopen and requested the BIA to reopen sua sponte in August 2017 seeking adjustment of status based on the approved I-130 and alleged hardship to her U.S. citizen children.
- The BIA denied the motion to reopen as untimely under the 90-day statutory bar and found no exception or extraordinary circumstances warranting equitable tolling.
- The BIA also declined to exercise sua sponte authority, finding no exceptional situation warranting reopening; Gyamfi then petitioned the First Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA abused discretion by denying untimely motion to reopen under 8 U.S.C. § 1229a(c)(7)(C)(i) | Gyamfi: new I-130 makes her prima facie eligible for adjustment; BIA should have reopened despite time bar | Government: 90-day limit expired and no statutory exception applies; new I-130 is not a statutory exception | Court: No abuse of discretion; motion untimely and no exception applies |
| Whether equitable tolling applies to excuse late filing | Gyamfi: extraordinary circumstances (unforeseeable I-130 approval; hardship to children) justify tolling | Government: even if tolling available, Gyamfi failed to show extraordinary circumstances or due diligence | Court: Even assuming tolling possible, Gyamfi failed both extraordinary-circumstance and diligence prongs; denial stands |
| Whether court has jurisdiction to review BIA’s refusal to reopen sua sponte | Gyamfi: § 1252(a)(2)(D) preserves review of constitutional or legal claims regarding BIA’s sua sponte decision | Government: BIA’s sua sponte decisions are committed to agency discretion and generally unreviewable | Court: Declined to decide whether § 1252(a)(2)(D) restores jurisdiction because Gyamfi raised no colorable constitutional or legal claim; challenge dismissed for lack of jurisdiction |
| Whether BIA violated due process by ignoring relevant factors (Matter of J-J-) | Gyamfi: BIA failed to consider factors (hardship, criminal history, policy) amounting to due-process error | Government: No cognizable liberty interest created; factors cited not from Matter of J-J- and do not establish legal error | Court: No colorable due-process claim; BIA’s discretion in sua sponte reopening does not create a protected liberty interest |
Key Cases Cited
- Mazariegos v. Lynch, 790 F.3d 280 (1st Cir.) (motions to reopen are disfavored; BIA has wide discretion)
- Sihotang v. Sessions, 900 F.3d 46 (1st Cir.) (untimely motions to reopen face a steep uphill climb)
- Neves v. Holder, 613 F.3d 30 (1st Cir.) (explaining 90-day motion-to-reopen rule and equitable tolling framework)
- Lemus v. Sessions, 900 F.3d 15 (1st Cir.) (discussing interplay of Garcia-era discretion and statutory time/number bars)
- Luis v. INS, 196 F.3d 36 (1st Cir.) (holding BIA's refusal to exercise sua sponte authority generally unreviewable)
- Dada v. Mukasey, 554 U.S. 1 (U.S. Supreme Court) (context on statutory amendments affecting motions to reopen)
- Cevilla v. Gonzales, 446 F.3d 658 (7th Cir.) (holding § 1252(a)(2)(D) can permit review of BIA’s sua sponte refusal for colorable legal or constitutional claims)