Ndeye Thiam v. Jefferson Sessions, III
701 F. App'x 373
| 5th Cir. | 2017Background
- Thiam, a Senegalese national, moved to reopen her 2010 removal proceedings seeking special rule cancellation of removal based on alleged spousal abuse during her marriage to a U.S. citizen (abuse occurred 2002–2004).
- She asserted the evidence of abuse was previously unavailable and therefore justified reopening; the BIA denied the motion, finding she failed to show the evidence could not have been discovered earlier and that she was not prima facie eligible for relief.
- Thiam also argued ineffective assistance of prior counsel and that the immigration judge failed to inform her of the option to raise the spousal-abuse claim; she raised due-process and adequacy-of-explanation challenges to the BIA’s decision.
- The BIA cited the governing regulation on motions to reopen and concluded the abuse allegations (years before proceedings) did not justify reopening; it also corrected initial findings about timeliness and supplied a cancellation application copy.
- The Fifth Circuit determined it lacked jurisdiction to review Thiam’s ineffective-assistance and IJ-notice claims for failure to exhaust administrative remedies, and it upheld the BIA’s discretionary denial of the motion to reopen.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review ineffective-assistance claims | Thiam: prior counsel was ineffective, warranting relief | Govt: Thiam failed to exhaust administrative remedies | Court: Jurisdiction lacking; claims dismissed for failure to exhaust |
| IJ notice of ability to raise abuse claim | Thiam: IJ failed to inform her she could raise spousal-abuse claim earlier | Govt: Thiam did not administratively exhaust this claim | Court: Jurisdiction lacking; claim not reviewable |
| Motion to reopen—unavailable evidence requirement | Thiam: evidence of abuse was previously unavailable and justifies reopening | BIA/Govt: abuse occurred years before removal; evidence could have been presented earlier | Court: BIA did not abuse discretion; denial affirmed |
| Due process / adequacy of BIA explanation | Thiam: BIA gave conclusory, inadequate reasons and ignored her literacy, bigamy, and abuse evidence | BIA: provided regulation citation and factual basis; corrected record errors; sufficient explanation for review | Court: BIA’s explanation adequate; no due-process violation found |
Key Cases Cited
- Wang v. Ashcroft, 260 F.3d 448 (5th Cir.) (administrative exhaustion required for ineffective-assistance claims)
- Hernandez-Ortez v. Holder, 741 F.3d 644 (5th Cir.) (exhaustion principle in immigration appeals)
- Kane v. Holder, 581 F.3d 231 (5th Cir.) (limits on jurisdiction where administrative remedies not exhausted)
- Zhao v. Gonzales, 404 F.3d 295 (5th Cir.) (standards for motions to reopen based on changed or previously unavailable evidence)
- Hernandez-Cordero v. USINS, 819 F.2d 558 (5th Cir.) (BIA explanation sufficiency for appellate review)
- Saahir v. Collins, 956 F.2d 115 (5th Cir.) (lack of legal knowledge generally not an excuse when represented)
- Crutcher v. Aetna Life Ins. Co., 746 F.2d 1076 (5th Cir.) (represented parties held to standard despite claimed ignorance)