Kayann Darby v. Attorney General United States
1 F.4th 151
| 3rd Cir. | 2021Background
- Kayann Darby, a Jamaican national and U.S. lawful permanent resident, pleaded guilty in 2014 to conspiracy to commit mail and wire fraud for participating in a lottery phone scam run by a leader known as “Ringo.”
- Darby cooperated with prosecutors (identified Ringo in a photo), received a 30‑month sentence and restitution, and later was placed in removal proceedings based on her conviction.
- The IJ found Darby credible but denied asylum, withholding, and CAT relief, concluding she had not shown (1) a likelihood of torture by Ringo or associates, (2) inability to relocate safely in Jamaica, or (3) that Jamaican officials would acquiesce to torture. The BIA affirmed.
- About 18 months after the BIA decision, Darby filed an untimely motion to reopen, invoking the changed‑country‑conditions exception to support a CAT claim (asserting Ringo had returned to Jamaica and knew of her cooperation) and also asserted new eligibility to adjust status based on an I‑130 approved for her by her son.
- The BIA denied the motion as untimely because Darby failed to submit material evidence addressing the BIA/IJ’s core finding that Jamaican officials would acquiesce to torture; it also declined to reopen sua sponte, finding prospective adjustment eligibility was not an exceptional circumstance. Darby petitioned for review; the Third Circuit denied the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA abused discretion in denying motion to reopen based on changed country conditions for CAT relief | Darby: new evidence (Ringo returned/aware of cooperation; news of related murder) shows changed circumstances warranting reopening | BIA: new materials are not "material" because they do not rebut agency’s core finding that officials would not acquiesce | Held: No abuse. Evidence did not address the IJ/BIA finding on official acquiescence and so failed the materiality requirement; motion untimely. |
| Whether Darby met the materiality and prima facie thresholds for reopening a CAT claim | Darby: new facts would change result and show likelihood of torture and inability to relocate | BIA: even if some elements strengthened, Darby presented no new evidence on the dispositive acquiescence element; prima facie hurdle not reached | Held: Darby failed procedural (materiality) hurdle; absent evidence on acquiescence, motion cannot change the outcome. |
| Whether BIA erred by refusing sua sponte reopening because Darby became eligible for adjustment of status | Darby: approved I‑130 makes her immediately eligible (not merely "potentially"), an extraordinary circumstance justifying sua sponte reopening | BIA/DHS: approval does not create a rare/exceptional circumstance warranting sua sponte reopening; eligibility status characterization immaterial to discretionary denial | Held: Court lacks jurisdiction to review BIA’s denial of sua sponte reopening absent legal error or departure from settled practice; BIA’s reasoning did not rest on a legal premise requiring review, so sua sponte denial unreviewable. |
| Whether BIA violated Darby’s due‑process rights by failing to consider family hardship and other evidence in motion to reopen | Darby: BIA ignored evidence of family hardship and her adjustment eligibility, denying meaningful consideration | BIA/DHS: motion to reopen is discretionary; BIA considered relevant materials and made an individualized decision; no protectable liberty interest in discretionary reopening | Held: No due‑process violation. Aliens have no constitutional interest in discretionary reopening; court finds BIA adequately considered the materials. |
Key Cases Cited
- INS v. Doherty, 502 U.S. 314 (1992) (motions to reopen in removal proceedings are disfavored)
- INS v. Abudu, 485 U.S. 94 (1988) (BIA has discretion to deny motions to reopen even if prima facie case shown)
- Sevoian v. Ashcroft, 290 F.3d 166 (3d Cir. 2002) (prima facie CAT standard: reasonable likelihood of torture)
- Guo v. Ashcroft, 386 F.3d 556 (3d Cir. 2004) (motions to reopen are granted only under compelling circumstances)
- Khan v. Attorney General, 691 F.3d 488 (3d Cir. 2012) (materiality requires new evidence to address the IJ’s dispositive factual finding)
- Bamaca‑Cifuentes v. Attorney General, 870 F.3d 108 (3d Cir. 2017) (changed‑country‑conditions exception applies to motions to reopen CAT claims)
- Pllumi v. Attorney General, 642 F.3d 155 (3d Cir. 2011) (BIA has unfettered discretion to reopen sua sponte; such denials are typically unreviewable)
- Sang Goo Park v. Attorney General, 846 F.3d 645 (3d Cir. 2017) (limits on court jurisdiction to review BIA’s denial of sua sponte reopening)