Arfan Yasin v. Attorney General United StatesArfan Yasin v. Attorney General United States
Usman B. Ahmad
47-40 21st Street
Penthouse A 10th Floor
Long Island City, New York 11101
Counsel for Petitioner
Jeffrey Bossert Clark
Andrew N. O‘Malley
Sarai M. Aldana
United States Department of Justice
Office of Immigration
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
OPINION OF THE COURT
RESTREPO, Circuit Judge.
Arfan Yasin, a citizen and native of Pakistan, last entered the United States over two decades ago. In 2002, he became subject to a final order of removal issued by the Board of Immigration Appeals (“BIA“). He continued residing in the United States following the issuance of his final order of removal, and, in 2017, he and his United States citizen wife welcomed a United States citizen daughter. Yasin‘s daughter requires regular medical treatment to address gross developmental delays.
Approximately seven months following his daughter‘s birth, Yasin filed an I-360, Petition for Amerasian, Widow(er), or Special Immigrant, requesting classification “as the abused spouse of a United States citizen” under the Violence Against Women Act (“VAWA“). His I-360 self-petition was approved over two years later, and in December 2019 — more than 17 years following his final order of removal — Yasin filed a motion to reopen sua sponte his removal proceedings on the ground that reopening was warranted to address his classification as an abused spouse under VAWA. The BIA denied his motiоn, refusing to grant Yasin a waiver of the 1-year limitations period under
Because the BIA‘s decision whether to waive
I.
A.
Yasin last entered the United States near Massena, New York on or about August 17, 2000. That same day, the Government served him with a Notice to Appear (“NTA“), charging him as removable from the United States pursuant to Section 212(a)(6)(A)(i) of the Immigration and Nationality Act for being “an alien present in the United Stаtes without being admitted or paroled, or who arrived in the United States at any time or place other than as designated by the Attorney General.” A.R. 171. On August 30, 2000, the Government filed the NTA with the Executive Office for Immigration Review, thereby formally initiating removal proceedings. Approximately two months later, Yasin filed a motion to change venue in which he admitted to the allegations stated in the NTA and conceded to being removable as charged.1
On April 12, 2001, Yasin applied for withholding of removal and asylum. The Immigration Judge (“IJ“) denied Yasin‘s application in an oral decision on September 10, 2001. According to the IJ, Yasin‘s claims lacked corroboration, credibility, and logic. Yasin appealed, and the BIA affirmed the IJ‘s decision, without opinion, on September 24, 2002.
In June 2016, following a religious ceremony, Yasin — still residing in the United States — registered with the requisite local authorities a marriage between him and a United States citizen. In January 2017, the couple wеlcomed a United States citizen daughter. Following the child‘s birth, Yasin‘s spouse “regularly began subjecting him to psychological abuse and extreme cruelty, often using their child as a means of controlling [him].” A.R. 11. During this period of abuse, the child was diagnosed with “developmental gross motor delays,” which required her to receivе regular medical care. A.R. 12. Yasin “ensured that he cared for his daughter‘s needs” and “began taking [her] for treatment[,] taking her to and from appointments, and regularly ensuring to follow up with [her] specialist.” A.R. 12. He also “assist[ed] his daughter through home exercises to alleviate [her] pain.” A.R. 14. According to Yasin, his spouse did not actively participate in the child‘s medical treatment. In August 2017, Yasin filed an I-360, Petition for Amerasian, Widow(er), or Special Immigrant, requesting classification “as the abused spouse of a United States citizen” pursuant to VAWA. A.R. 12. His self-petition was approved in September 2019.
C.
On December 23, 2019, more than 17 years after becoming subject to a final order of removal, Yasin filed a motion with the BIA to reopen sua sponte his removal proceedings. He argued that his marriage, the abuse that he suffered at the hands of his spouse, and the approval of his I-360 self-petition all amounted to “new and material evidence that was not previously available” at the time that the BIA issued his final order of removal in 2002. A.R. 13. Recognizing that his petition was untimely, Yasin urged the BIA to waive the 1-year limitations period for filing a motion to reopen under
The BIA denied Yasin‘s motion on June 29, 2020. Concluding that he was not eligible for a waiver of the limitations period, the BIA acknowledged that it was “sympathetic” to Yasin‘s situation but reasoned that the evidence provided “[did] not establish the requisite extraordinary circumstances or extreme hardship necessary to waive the applicable 1-year filing deadline.” A.R. 3. The BIA also noted that “[b]ecoming eligible for relief from removal after a final administrative order has been entered is common and does not, in itself, constitute an exceptional situation warranting [its] consideration of an untimely motion.” A.R. 3 (citing Matter of Yauri, 25 I&N Dec. 103, 105 (BIA 2009)). Yasin timely petitions us for review.
II.
The BIA had jurisdiction under
We review the BIA‘s denial of a motion to reopen for abuse of discretion. Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). “As a general rule, motions to reopen are granted only under compelling circumstances,” id. at 561, and we will not disturb the BIA‘s “[d]iscretionary decisions . . . unless they are found to be arbitrary, irrational, or contrary to law,” id. at 562 (quoting Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994)). We conduct de novo review of the BIA‘s legal conclusions and consider its findings of fact under a “substantial evidence” standard. Darby v. Att‘y Gen., 1 F.4th 151, 159 (3d Cir. 2021); see also Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005) (indicating that the “substantial evidence” standard “requires us to treat findings of fact as ‘conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary‘“) (quoting
III.
As a threshold matter, we must consider our own jurisdiction to review Yasin‘s petition. In denying Yasin‘s VAWA-based motion to reopen, the BIA — after recognizing that it was filed more than 17 years after the closing of the 1-year limitations period pursuant to
A.
Typically, an individual subject to a final order of removal has 90 days in which to file a motion to reopen removal proceedings.
We generally do not have jurisdiction to consider an Attorney General‘s decision that has been statutorily committed to his or her discretion.
Although we have yet to consider precedentially the role of
This interpretation of the interplay between
That being said, this jurisdictional bar is not without its own statutory limitations. We still retain jurisdiction to consider constitutional challenges or questions of law.
B.
Turning to Yasin‘s petition, we lack jurisdiction to review the BIA‘s denial of his VAWA-based motion to reopen. As an initial matter, the parties do not dispute the BIA‘s determination that Yasin‘s petition was untimely — it was filed 17 years after the close of
diction, Yasin suggests that we apply an exception to the general rule: the “settled course exception.” See Sang Goo Park v. Att‘y Gen., 846 F.3d 645, 653 (3d Cir. 2017). Under that exception, “a petitioner must establish that the BIA has limited its discretion via a policy, rule, settled course of adjudication, or by sоme other method, such that the BIA‘s discretion can be meaningfully reviewed for abuse.” Id. “The petitioner‘s showing must be persuasive enough to allow the reasonable inference that the BIA‘s discretion has in fact been limited.” Id.
Contrary to Yasin‘s claim, the “settled course exception” does not apply here. Yasin‘s argument appears to hinge on the idea that “the BIA has established a settled practice to reopen proceedings provided that a respondent demonstrates prima facie eligibility for relief under VAWA and extreme hardship to a child by way of meaningful evidence.” Pet‘r‘s Br. 16. However, the cases that Yasin сites in support suggest, if anything, that the BIA has a settled course of practice in declining to exercise its discretion to sua sponte reopen proceedings. See id. at 16-17 (citing cases). These cases in no way demonstrate, as Yasin suggests, the inverse: that the BIA has a settled course in granting a motion to reopen sua sponte when the movant demonstrates a prima facie case. Cf. A.R. 3 (As the BIA indicated in its decision, “[b]ecoming eligible for relief from removal after a final administrative order has been entered is common and does not, in itself, constitute an exceptional situation warranting [its] consideration of an
untimely motion.“). And even if Yasin was to point to “one favorable exercise of discretion,” that alone “does not a settled course make.” Sang Goo Park, 846 F.3d at 654.
Finally, it is unclear from Yasin‘s petition whether he relies on another exception to the general rule that we lack jurisdiction over the BIA‘s “unfettered discretion” to decline to sua sponte reopen removal proceedings, i.e., that the BIA applied an “incorrect legal premise” in reaching its decision. See Darby v. Att‘y Gen., 1 F.4th 151, 164 (3d Cir. 2021); Sang Goo Park, 846 F.3d at 651. However, to the extеnt that Yasin suggests that the BIA applied an “incorrect legal premise” such that it serves as an exception to our lack of jurisdiction, we disagree. Yasin has not shown that the BIA applied an “incorrect legal premise.” And his argument that the BIA‘s actions were “irrational” does not merit a suggestion that the BIA reliеd on incorrect law. See Pet‘r‘s Br. 17-18.
Finally, although we do have jurisdiction under
IV.
Although we are sympathetic to Yasin‘s compelling circumstances, our lack of jurisdiction restricts us from reviewing the underlying merits of his motion to reopen. Therefore, for these reasons, we will deny his petition for review.