AMMA ADU GYAMFI, Petitioner, v. MATTHEW G. WHITAKER, ACTING ATTORNEY GENERAL, Respondent.
No. 18-1093
United States Court of Appeals For the First Circuit
January 10, 2019
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before Thompson, Kayatta, and Barron, Circuit Judges.
Saher Joseph Macarius, Audrey Botros, and Law Offices of Saher Joseph Macarius LLC on brief for petitioner.
Chad A. Readler, Acting Assistant Attorney General, Civil Division, M. Jocelyn Lopez Wright, Senior Litigation Counsel, Office of Immigration Litigation, and Anna Juarez, Trial Attorney, Office of Immigration Litigation, on brief for respondent.
January 10, 2019
* Pursuant to
BACKGROUND
In March of 2004, Gyamfi, a native of Ghana and resident of Italy from 1992 until 2004, arrived in the U.S. on a nonimmigrant B-2 visa that granted her a six-month stay here. Gyamfi didn‘t leave after her permissible time here expired, and in November 2007, she married a U.S. citizen,
A month later, DHS initiated removal proceedings against Gyamfi: she was charged with removability as an alien who remained in the U.S. for a time longer than permitted after being admitted as a nonimmigrant visitor (
Unpersuaded by her arguments and testimony relative to her lamentations of persecution, in March 2013, the IJ ordered her removed.4 The BIA affirmed the IJ and, in July 2014, dismissed the appeal. Gyamfi did not seek judicial review of that decision.
Fast-forward three years to August 31, 2017: in light of an I-130 petition filed in November 2015 on her behalf by her recently naturalized U.S. citizen daughter5 (and which was approved by DHS in April 2016), Gyamfi sought to adjust her status. She moved to reopen her case and also requested sua sponte (“on its own motion“) reopening by the BIA premised on the hardship her removal would have on her children. In response, DHS filed an opposition to the motion, albeit late.
The BIA denied Gyamfi‘s motion as untimely (the final administrative order entered in July of 2014, and the BIA didn‘t receive the motion to reopen until August 2017) and not falling within any exception to the ninety-day window to file a motion to reopen. See
Gyamfi timely petitioned this court for review.
ANALYSIS
Gyamfi offers up a smorgasbord of appellate contentions, but distilling those arguments to their core essence as best we can, we think they primarily fit under two main headings: (1) the BIA abused its discretion by denying her motion to reopen; or, in the alternative, (2) the BIA should have deployed its discretionary authority to reopen the proceedings sua sponte. She advances various arguments in support of these two issues, which we will explore in turn.
And as we review Gyamfi‘s contestations, we necessarily bear in mind our familiar standard: to the extent we have jurisdiction, “[b]ecause a motion to reopen removal proceedings is a disfavored tool, given the threat it poses to finality, the BIA has a fair amount of latitude to grant or deny the motion and our review is for abuse of discretion only.” Mazariegos v. Lynch, 790 F.3d 280, 285 (1st Cir. 2015) (citing Perez v. Holder, 740 F.3d 57, 61 (1st Cir. 2014)); see also Sihotang v. Sessions, 900 F.3d 46, 48 (1st Cir. 2018) (“Motions to reopen -- especially untimely motions to reopen -- are disfavored in immigration cases. Consequently, an alien who seeks to reopen removal proceedings out of time ordinarily faces a steep uphill climb.“). Unless a petitioner can show that the BIA either committed a material error of law or exercised its authority arbitrarily, capriciously, or irrationally, we will uphold the BIA‘s decision. See Bbale v. Lynch, 840 F.3d 63, 66 (1st Cir. 2016) (citing Rosa v. Gonzales, 484 F.3d 125, 127 (1st Cir. 2007)).
Before diving into Gyamfi‘s argument, saying a bit more about the pertinent aspects of the ninety-day rule would be helpful.6 Pursuant to
a. The Ninety-Day Rule
Gyamfi claims the BIA abused its discretion when it declined to grant her motion to reopen. She does not dispute that her August 2017 filing missed the deadline -- the BIA‘s final administrative order was issued on July 17, 2014 and October 13, 2014 (ninety days later) was the last day Gyamfi could have filed her motion. However, she asserts that because she was “prima facie” eligible for status adjustment as a result of the previously unavailable evidence (the I-130 visa her daughter filed on her behalf long after the expiration of the ninety-day limit), the BIA should have ruled differently on
The government disagrees, and its position is simple: the ninety-day limit expired and no exception applies. Indeed, the government points out that Gyamfi cannot be “prima facie” eligible for status adjustment given the untimeliness of her motion.
In support of her claim of “prima facie” eligibility Gyamfi cites to Matter of Garcia, 16 I. & N. Dec. 653, 654 (B.I.A. 1978), a case wherein the BIA explained the appropriateness of exercising its discretion (at least at that time) to reopen immigration proceedings during the pendency of adjustment of status applications of prima facie eligible movants. But her reliance on this case is misplaced. Garcia was decided before Congress enacted time and number bars on motions to reopen, Lemus v. Sessions, 900 F.3d 15, 19 (1st Cir. 2018) (citing Dada v. Mukasey, 554 U.S. 1, 13 (2008) (outlining that history)), and what‘s more, the BIA, itself, has moved away from its Garcia holding, see id. (collecting BIA cases). Given this evolution (and as we have previously noted), our confidence in Garcia‘s continuing applicability has been undercut. Id. But whether or not viable, Garcia‘s recognition of the IJ‘s discretionary authority is not a rule mandating the exercise of same.
Accordingly, we believe the government has the better argument on the application of the ninety-day rule. Though Gyamfi tells us she can present new evidence, clearly the new evidence she offers, an I-130 visa, is not a statutory exception to the rule. See
b. Equitable Tolling
Alternatively, Gyamfi argues the BIA erred in not reopening her removal
Equitable tolling “extends statutory deadlines in extraordinary circumstances for parties who were prevented from complying with them through no fault or lack of diligence of their own.” Neves, 613 F.3d at 36 (citing Fustaguio Do Nascimento v. Mukasey, 549 F.3d 12, 18-19 (1st Cir. 2008)). So the party seeking to toll the deadline bears the burden of showing: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). We are mindful, though, that equitable tolling “is a rare remedy to be applied in unusual circumstances, not a cure-all for an entirely common state of affairs.” Id. (quoting Wallace v. Kato, 549 U.S. 384, 396 (2007)). Furthermore, the decision to apply equitable tolling is a judgment call, see Cordle v. Guarino, 428 F.3d 46, 48 (1st Cir. 2005) (applying the abuse of discretion standard to the district court‘s decision regarding equitable tolling), so the BIA‘s decision “will stand unless [its] resolution rests on a material error of law or a manifestly arbitrary exercise of judgment,” Meng Hua Wan v. Holder, 776 F.3d 52, 56 (1st Cir. 2015) (citing Fustaguio Do Nascimento, 549 F.3d at 18-19).
This court has not decided whether equitable tolling may apply in this context.10 See, e.g., Neves, 613 F.3d at 36; Chedid v. Holder, 573 F.3d 33, 37 (1st Cir. 2009); see also Mata v. Lynch, 135 S. Ct. 2150, 2156 n.3 (2015) (noting that the Court had “no opinion as to whether or when the INA allows the Board to equitably toll the 90-day period to file a motion to reopen“). We take our cue from decisions past and assume,
Even giving Gyamfi the benefit of that assumption, she cannot prevail. First, Gyamfi failed to meet the extraordinary circumstances prong. She points us to no authority to support her supposition that the existence of new evidence (the I-130) is an extraordinary circumstance. Indeed, an unforeseeable future occurrence cannot logically be viewed as an influence on past conduct. Same goes for her contention about the detrimental impact of her removal on her children. The horrors she portrays as befalling her children should she be required to depart the country are little different today as during the ninety-day window. Therefore, neither of Gyamfi‘s reasons for not timely filing can be characterized as an extraordinary circumstance that “stood in her way” when it came to meeting the statutory deadline. Jobe, 238 F.3d at 100 (“The fundamental principle is that equitable tolling ‘is appropriate only when the circumstances that cause a [party] to miss a filing deadline are out of [her] hands.‘” (alteration in original) (quoting Salois v. Dime Sav. Bank, 128 F.3d 20, 25 (1st Cir. 1997))).
In any event, even if we were to assume Gyamfi has demonstrated an extraordinary circumstance, she nonetheless fails to show how she diligently pursued her rights during the ninety- day window or the sixteen months that followed the I-130‘s approval. Indeed, even overlooking the ninety-day period (during which she had no reason to seek to reopen as the I-130 was not yet in play, though she could have brought up the hardship-to-the-children argument), she still has a sixteen-month due diligence issue for which she has no convincing explanation. Gyamfi‘s argument is that she did her due diligence by getting a lawyer (the same one she‘d had throughout, we note) and by submitting her motion to reopen once the I-130 was approved. But neither action accounts for the sixteen-month delay following the I-130‘s approval. See, e.g., Dawoud v. Holder, 561 F.3d 31, 36 (1st Cir. 2009) (assuming equitable tolling was available but concluding nevertheless that a motion to reopen filed out of time (two years post-final decision and eleven months post-I-130 approval) did not warrant equitable tolling); Chedid, 573 F.3d at 37 (holding that when petitioner failed to “provide[] [any] information whatsoever regarding the actions he took during the one-year period immediately following” the original order, he failed to demonstrate due diligence).
In sum, Gyamfi fails to demonstrate how the BIA abused its discretion in any way, and having failed to do so, she is bound by the ninety-day rule, which expired long before she filed her motion to reopen.
2. Do we lack jurisdiction to review the BIA‘s decision not to exercise its sua sponte authority to reopen the proceedings in this case?
Absent an abuse of discretion by the BIA in its decision to deny Gyamfi‘s motion to reopen, we know that a motion to reopen can be granted only if the BIA exercises its sua sponte authority to reopen the proceedings -- something the BIA was asked to do here but did not. Gyamfi contends this was error, specifically, constitutional due process error. Peppering this section of her briefing with conclusory arguments that appear to be offered in support of her constitutional claim, her primary bone of contention seems to be that the BIA impermissibly ignored factors she says should have been considered as delineated in Matter of J-J-, 21 I. & N. Dec. 97611 (she lists the following factors:
In past cases, “we have repeatedly held that we do not have jurisdiction to review challenges to the BIA‘s failure to exercise its sua sponte authority because such decisions are ‘committed to its unfettered discretion.‘” Matias v. Sessions, 871 F.3d 65, 68 (1st Cir. 2017) (quoting Luis v. INS, 196 F.3d 36, 40 (1st Cir. 1999)); see also Reyes v. Sessions, 886 F.3d 184, 188 (1st Cir. 2018) (quoting Charuc v. Holder, 737 F.3d 113, 115 (1st Cir. 2013)). As rationale for so holding, we explained, “no judicially manageable standards are available for judging how and when [the BIA] should exercise its discretion,” making it “impossible to evaluate [the] agency action for ‘abuse of discretion‘“; so “the very nature of the claim renders it not subject to judicial review.” Luis, 196 F.3d at 40 (citations omitted); see also Neves, 613 F.3d at 35.
In an effort to convince us that we do in fact have jurisdiction, Gyamfi directs us to
Last year, in Matias, we carefully surveyed the landscape against which this argument plays out, noting that “[o]ur no-jurisdiction rule originated with Luis, 196 F.3d at 40,” but recognizing that Luis “was decided years before the 2005 passage of
Some of our sister circuits have tackled
So, all told, some jurisdictions have found
As we said in Lemus, a due process claim can succeed only if there is a “cognizable liberty interest.” 900 F.3d at 19 (quoting Matias, 871 F.3d at 72). We have further pointed out that the BIA‘S decision whether to exercise its “purely discretionary” sua sponte authority “does not create a cognizable liberty interest.” Matias, 871 F.3d at 72 (quoting Mejia-Orellana v. Gonzales, 502 F.3d 13, 17 (1st Cir. 2007)). And aside from faulting the BIA for not exercising its discretionary authority to reopen her removal proceedings, Gyamfi has not identified any other cognizable liberty interest. In fact, Gyamfi drops the phrase “due process” one single time in her brief, and her points purportedly in support of her due-process claim (relating to the hardship to be suffered by her children) do not support the outcome she seeks and are not buttressed by controlling authority. We have said -- and now repeat -- that “‘[a] bare allegation of either a constitutional shortfall or legal error’ will not suffice,” Rivera v. Sessions, 903 F.3d 147, 150 (1st Cir. 2018) (quoting Ayeni, 617 F.3d at 71), and “mere ‘invocation of the Due Process Clause does not create a constitutional claim for the purpose of
Meanwhile, Gyamfi‘s reliance on Matter of J-J-, 21 I. & N. Dec. 976, is misplaced and unpersuasive (and downright odd): the factors Gyamfi complains were ignored by the BIA (hardship to a petitioner and his/her family, a petitioner‘s criminal history, the severity and number of immigration missteps) nowhere appear in Matter of J-J-, and we are unable to find any authority (and Gyamfi points to no other) that establishes that the BIA‘s failure to mention these factors constitutes a violation of due process.13
CONCLUSION
Gyamfi‘s petition for review is denied as to her challenge to the BIA‘s determination that the motion to reopen was untimely, and it is dismissed for lack of jurisdiction as to her challenge to the BIA‘s decision to not exercise its authority to reopen sua sponte.