Hassall Moses v. Loretta Lynch
672 F. App'x 723
| 9th Cir. | 2016Background
- Petitioner Hassall Moses, a citizen of the Federated States of Micronesia, appealed the IJ’s order of removal to the BIA and sought remand; he proceeds pro se.
- The BIA dismissed Moses’ appeal and denied his motion to remand; Moses petitioned this court for review under 8 U.S.C. § 1252.
- Moses argued the BIA failed to give sufficient reasons, and raised factual matters (family ability to pay for a ticket, post-conviction relief efforts) and procedural complaints about the IJ (denial of continuance, inability to call witnesses, lack of transcripts).
- He also challenged denial of voluntary departure and sought prosecutorial discretion; he filed motions for emergency stay and oral argument in this court.
- The Ninth Circuit reviewed denial of the motion to remand for abuse of discretion and considered whether Moses established prima facie eligibility for relief; it assessed exhaustion of administrative remedies for various claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Denial of motion to remand | Moses: new evidence and claims entitle him to remand | BIA: Moses failed to show prima facie eligibility for relief | Denial affirmed — BIA did not abuse discretion; Moses failed to show prima facie eligibility |
| Sufficiency of BIA’s reasons | Moses: BIA did not adequately explain its decision | BIA: record and decision are sufficient | Rejected — record shows BIA considered issues and announced reasons sufficiently |
| Consideration of new factual evidence (family ability to pay; post-conviction efforts) | Moses: court should consider these facts | Government: claims unexhausted and evidence is out-of-record | Dismissed for lack of jurisdiction — court cannot consider unexhausted claims or new evidence outside administrative record |
| Procedural complaints about the IJ (continuance, calling parents, transcripts) | Moses: IJ erred in denying continuance, opportunity to call parents, and providing transcripts | Government: claims unexhausted before agency | Dismissed for lack of jurisdiction — court lacks jurisdiction over unexhausted procedural claims |
| Denial of voluntary departure and request for prosecutorial discretion | Moses: IJ abused discretion and should have granted relief | Government: review is limited or precluded (statutory limits; prosecutorial discretion not reviewable) | Dismissed for lack of jurisdiction — statutory limits bar review of discretionary decisions |
Key Cases Cited
- Movsisian v. Ashcroft, 395 F.3d 1095 (9th Cir. 2005) (standard: review denial of motion to remand for abuse of discretion)
- Najmabadi v. Holder, 597 F.3d 983 (9th Cir. 2010) (agency may deny motion to reopen/remand for failure to establish prima facie eligibility)
- Garcia v. Holder, 621 F.3d 906 (9th Cir. 2010) (prima facie eligibility requires reasonable likelihood statutory requirements satisfied)
- Romero-Ruiz v. Mukasey, 538 F.3d 1057 (9th Cir. 2008) (requirements for motion to reopen and motion to remand are the same)
- Tijani v. Holder, 628 F.3d 1071 (9th Cir. 2010) (court lacks jurisdiction to consider claims not presented to the agency)
- Fisher v. INS, 79 F.3d 955 (9th Cir. 1996) (en banc) (new evidence may be added to the record only via motion to reopen with the agency)
- Rojas v. Holder, 704 F.3d 792 (9th Cir. 2012) (judicial review of voluntary departure denial limited to constitutional claims and questions of law)
- Vilchiz-Soto v. Holder, 688 F.3d 642 (9th Cir. 2012) (prosecutorial discretion decisions are generally not judicially reviewable)