Hyska v. Sessions
709 F. App'x 75
| 2d Cir. | 2017Background
- Petitioner Irisi Hyska, an Albanian national, sought cancellation of removal; an IJ denied relief but granted voluntary departure; the BIA affirmed on Feb 5, 2016.
- Hyska then moved to reopen (denied by the BIA on Aug 5, 2016), asserting ineffective assistance and new country-condition evidence to support asylum/CAT claims.
- The motion primarily submitted documents about past family persecution under Albania’s prior regime, analysts’ reports on political developments, an alleged decades‑old police beating, and a current family land dispute.
- The BIA concluded Hyska failed to make a prima facie showing of eligibility for asylum, withholding, or CAT relief and denied reopening.
- Hyska challenged the denial of cancellation and the denial of the motion to reopen; this Court reviewed legal and constitutional issues but lacked jurisdiction over discretionary factual determinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction over IJ’s discretionary factual findings denying cancellation | Hyska argued IJ improperly weighed evasive testimony and criminal history and rendered inconsistent ruling by granting voluntary departure | Gov’t: factual discretionary determinations are unreviewable; exhaustion failure on inconsistency claim | Court: Lack of jurisdiction to review discretionary factual findings; exhaustion bar prevents review of inconsistency claim |
| Failure to exhaust administrative remedies regarding alleged inconsistent rulings | Hyska contended IJ’s denial of cancellation but grant of voluntary departure was inconsistent | Gov’t noted Hyska did not raise this before the BIA | Held: Claim unexhausted and not considered |
| Motion to reopen based on ineffective assistance theory and evidence predating hearing | Hyska argued new evidence showed counsel failed to present family persecution and country conditions; asked BIA to reevaluate cancellation | Gov’t: evidence predated hearing; reopening requires evidence unavailable previously; ineffective‑assistance claim was not pursued | Held: BIA did not abuse discretion; evidence largely preexisting and ineffective‑assistance theory was abandoned |
| Motion to reopen based on changed country conditions/new evidence for asylum/CAT | Hyska asserted new country‑condition documents and incidents (police beating, family feud) support prima facie case | Gov’t: submitted evidence does not show personal nexus to protected ground or likelihood of torture; insufficient prima facie showing | Held: BIA reasonably found Hyska failed to show prima facie eligibility for asylum, withholding, or CAT relief; denial affirmed |
Key Cases Cited
- Wangchuck v. DHS, 448 F.3d 524 (2d Cir. 2006) (standard for reviewing IJ and BIA decisions for completeness)
- Barco‑Sandoval v. Gonzales, 516 F.3d 35 (2d Cir. 2008) (limits on judicial review of discretionary factual determinations)
- Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315 (2d Cir. 2006) (courts must identify whether claims raise legal/constitutional questions or mere factual complaints)
- Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104 (2d Cir. 2007) (exhaustion doctrine defined for immigration appeals)
- Mendez v. Holder, 566 F.3d 316 (2d Cir. 2009) (agency error of law where facts are overlooked or mischaracterized)
- Ali v. Gonzales, 448 F.3d 515 (2d Cir. 2006) (motions to reopen are disfavored; abuse‑of‑discretion review)
- INS v. Doherty, 502 U.S. 314 (1992) (motions to reopen are disfavored)
- INS v. Abudu, 485 U.S. 94 (1988) (BIA may deny reopening for failure to show prima facie case)
- Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007) (past family persecution under prior regime does not establish applicant’s asylum claim)
- Y.C. v. Holder, 741 F.3d 324 (2d Cir. 2013) (speculative assertions about future persecution insufficient without nexus)
- Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir. 2004) (CAT requires more‑likely‑than‑not risk of torture)
- Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008) (substantial‑evidence review of BIA factfinding on reopening)
- Ri Kai Lin v. BCIS, 514 F.3d 251 (2d Cir. 2008) (BIA’s denial of reopening can rest on straightforward application of regulations)
- Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83 (2d Cir. 2001) (inadequate BIA explanation can warrant remand if it leaves controversy and confusion)