Waqar Bangash v. Attorney General United States
20-2318
| 3rd Cir. | Jun 17, 2021Background
- Waqar Bangash, a Pakistani national, entered the U.S. on a student visa in 1998, overstayed, and was charged removable in 2003.
- An IJ denied further continuances and granted voluntary departure in December 2004; BIA dismissed his appeal in 2005. Multiple prior motions to reopen (2005, 2008) were denied.
- In January 2020 Bangash filed an untimely motion to reopen alleging changed country conditions: worsening persecution of Pashtun Shia Muslims since his 2004 IJ hearing, seeking asylum/withholding/CAT relief.
- The BIA denied the 2020 motion, concluding the submitted evidence addressed Shia Muslims generally (not Pashtun Shia specifically), reflected continuation rather than a meaningful change since 2004, and failed to show prima facie eligibility; it also declined to reopen sua sponte.
- The Third Circuit reviewed the BIA’s discretionary denial for abuse of discretion and denied Bangash’s petition, holding substantial evidence supports the BIA’s findings and that it lacked jurisdiction to review the sua sponte denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether untimely motion to reopen may proceed based on changed country conditions | Bangash: conditions for Pashtun Shia Muslims have "plummeted" since 2004, so new evidence excuses untimeliness | BIA: evidence shows ongoing persecution of Shia generally, not a meaningful change for Pashtun Shias since 2004 | Denied — BIA reasonably found evidence showed continuation, not meaningful change; no abuse of discretion |
| Whether evidence specifically establishes changed conditions for Pashtun Shia Muslims (vs. Shia generally) | Bangash: country-condition reports and declaration demonstrate worsening targeting of Pashtun Shias | BIA: submitted materials address Shia Muslims broadly and do not show group-specific, materially new conditions for Pashtun Shias | Denied — substantial evidence supports BIA’s conclusion that evidence was not specific to Pashtun Shias |
| Whether Bangash made a prima facie showing for asylum/withholding/CAT | Bangash: increased violence shows well-founded fear and eligibility for relief | BIA: record lacks pattern-or-practice evidence and lacks showing he would be singled out or tortured | Denied — BIA reasonably found Bangash failed to establish prima facie eligibility |
| Whether the court may review the BIA’s refusal to reopen sua sponte | Bangash: challenges BIA’s refusal to exercise sua sponte authority | Government: sua sponte denials generally unreviewable absent legal error or policy limiting discretion | No jurisdiction — neither exception applies, so court cannot review sua sponte denial |
Key Cases Cited
- Borges v. Gonzales, 402 F.3d 398 (3d Cir. 2005) (standard of review: abuse of discretion for BIA motions to reopen; substantial-evidence review of factual findings)
- Tipu v. INS, 20 F.3d 580 (3d Cir. 1994) (abuse of discretion occurs when agency acts arbitrarily, irrationally, or contrary to law)
- Filja v. Gonzales, 447 F.3d 241 (3d Cir. 2006) (the relevant "previous proceeding" for changed-country-conditions analysis is the IJ hearing)
- Pllumi v. Att’y Gen., 642 F.3d 155 (3d Cir. 2011) (untimely motions to reopen allowed only for material evidence of changed country conditions unavailable at prior proceeding)
- Park v. Att’y Gen., 846 F.3d 645 (3d Cir. 2017) (limits on judicial review of BIA sua sponte reopenings: review only when BIA relied on incorrect legal premise or had a binding policy limiting discretion)