Noor Sakhawati v. Loretta Lynch
823 F.3d 852
| 6th Cir. | 2016Background
- Sakhawati, a Bangladeshi native, was granted asylum in 2006 after testifying to kidnapping, forced marriage, and feminist-political persecution.
- In 2007, DHS moved to reopen and alleged new fraudulent information; the BIA granted the motion to reopen and remanded the case.
- On remand, an IJ denied asylum/withholding and ordered removal to Bangladesh; BIA affirmed the IJ’s denial in 2015.
- New evidence linked Sakhawati to the alias Muhibun Nessa through DHS records and an Eckert investigation showing identical alien files and identity.
- Eckert’s findings occurred after asylum was granted, but DHS had the Nessa file in its possession before the original hearing; DHS did not present it at the first hearing.
- Sakhawati petitions for review, arguing the BIA abused its discretion by reopening based on evidence that was available and could have been discovered earlier.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA abused its discretion in reopening | Sakhawati | Sakhawati (DHS) | Yes; BIA abused discretion; vacate remand and remand for further proceedings |
| Whether the evidence could have been discovered prior to the original hearing | Sakhawati shows due diligence was possible | DHS argues evidence was not discoverable | Yes; evidence was available and discoverable with due diligence; reopening improper |
| Whether DHS may pursue alternate means to address fraud if reopening is improper | N/A | DHS may initiate new removal proceedings if fraud is found | DHS may seek new proceedings; court does not decide res judicata here |
Key Cases Cited
- Allabani v. Gonzales, 402 F.3d 668 (6th Cir. 2005) (strict standard for material, undiscoverable new evidence to reopen)
- Ivanov v. Gonzales, 487 F.3d 635 (8th Cir. 2007) (due diligence required; government cannot rely on later discovery)
- Ramon-Sepulveda v. INS, 743 F.2d 1307 (9th Cir. 1984) (evidence discovered after hearing not sufficient if could have been discovered earlier)
- Hailemichael v. Gonzales, 454 F.3d 878 (8th Cir. 2006) (strict construction of availability for motions to reopen)
- Huang v. Ashcroft, 113 F. App’x 695 (6th Cir. 2004) (new evidence must be material and not available or discoverable earlier)
- INS v. Abudu, 485 U.S. 94 (1988) (motions to reopen treated like new-trial-type evidence with heavy burden)