Masereh Njie v. Loretta E. Lynch, 808 F.3d 380

Background

Masereh Njie and Alieu Sireh Jallow, Gambian nationals, entered the U.S. in 2002 and 2005, each previously obtained immigration benefits via marriages to U.S. citizens that later ended in divorce.
They formed a relationship, had two U.S.-born children, and married each other in 2013 while separate removal appeals were pending.
DHS commenced removal proceedings in 2011 alleging fraud/willful misrepresentation in prior marriage-based immigration claims; IJs denied their waivers of inadmissibility and found them not credible and to have engaged in sham marriages and document fraud.
While appeals were pending, Njie received letters from family in Gambia (Jan 2014) alleging a tribal practice of “recircumcision” as punishment for marrying across tribes; Njie filed an untimely asylum application based on fear of recircumcision.
The BIA affirmed the discretionary denials of waivers and denied motions to remand/reopen, concluding the asylum claim was untimely (no changed country conditions), the letters were not shown to be previously unavailable, and that the applicants’ lack of credibility meant they failed to make a prima facie asylum showing.
The court dismissed review of the BIA’s discretionary denial of waivers for lack of jurisdiction and otherwise denied the petitions challenging the BIA’s denial of motions to remand.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Jurisdiction to review denial of discretionary waiver under 8 U.S.C. §1227(a)(1)(H)	Njie/Jallow argue IJ legally erred by effectively requiring showing of children’s hardship, a nonstatutory requirement	Government contends denial was discretionary and not reviewable; IJ merely weighed hardship among factors	Court: Dismissed review of discretionary denial; no jurisdiction to review discretionary weighing
Whether BIA erred in denying motion to remand as untimely asylum (changed circumstances)	Njie/Jallow: letters evidence a new tribal practice (changed country conditions) excusing one-year filing deadline	BIA: marriage is a personal change; letters do not show changed country conditions nor previously unavailable evidence	Court: Even if BIA characterized as personal change, denial affirmed on other grounds; no abuse of discretion
Whether letters from family satisfy prima facie asylum requirement given adverse credibility	Njie/Jallow: letters and medical record support well-founded fear of recircumcision	BIA: applicants’ extensive fraud and adverse credibility undercut reliability; unsworn family letters insufficient	Held: BIA did not abuse discretion in finding letters insufficient to establish prima facie asylum eligibility
Applicability of Hassan (FGM presumption) to rebut adverse credibility here	Njie/Jallow: Hassan precludes imputing adverse credibility to FGM-related evidence; remand required to assess recircumcision fear	Government: Hassan concerned direct asylum appeal and presumption of past persecution; procedural posture differs	Held: Hassan inapplicable here; different posture and claim based on future recircumcision, so BIA discretion upheld

Key Cases Cited

Clifton v. Holder, 598 F.3d 486 (8th Cir.) (standard of review for BIA denial of motion to remand/reopen)
Zheng v. Mukasey, 523 F.3d 893 (8th Cir.) (marriage as personal changed circumstance)
INS v. Doherty, 502 U.S. 314 (1992) (motions to reopen are disfavored in removal proceedings)
Abudu v. INS, 485 U.S. 94 (1988) (grounds for BIA denial of motions to reopen)
Poniman v. Gonzales, 481 F.3d 1008 (8th Cir.) (enumerating BIA’s independent grounds to deny motion to reopen)
Feleke v. INS, 118 F.3d 594 (8th Cir.) (subjective and objective components of well-founded fear)
Hassan v. Gonzales, 484 F.3d 513 (8th Cir.) (FGM establishes presumption of past persecution; credibility issues explained)
R.K.N. v. Holder, 701 F.3d 535 (8th Cir.) (adverse credibility on one claim does not necessarily defeat other claims)
Taylor v. Illinois, 484 U.S. 400 (1988) (due diligence and discovery of evidence)