Bbale v. Lynch , 840 F.3d 63 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-2372
DOUGLAS JIMMY BBALE,
Petitioner,
v.
LORETTA E.LYNCH,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Thompson, Selya and Stahl,
Circuit Judges.
George Charles Maroun, Jr. and Maroun & Cabelus LLC on brief
for petitioner.
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Civil Division, United States Department of Justice, John
S. Hogan, Assistant Director, Office of Immigration Litigation,
and Ashley Martin, Trial Attorney, Office of Immigration
Litigation, on brief for respondent.
October 24, 2016
SELYA, Circuit Judge. The petitioner, Douglas Jimmy
Bbale, seeks judicial review of a final decision of the Board of
Immigration Appeals (BIA), which denied his motion to reopen
removal proceedings. Discerning no abuse of the BIA's broad
discretion, we deny the petition.
I. BACKGROUND
The petitioner, a Ugandan national, was admitted to the
United States as a visitor for a six-month period that expired on
November 22, 2000. He overstayed, and almost nine years elapsed
before the Department of Homeland Security (DHS) instituted
removal proceedings against him.
The petitioner initially pursued an application to
adjust his status to that of a lawful permanent resident based on
a petition filed by his citizen-spouse. That strategy backfired
when, on December 5, 2011, United States Citizenship and
Immigration Services issued a notice of intent to revoke the
petition, citing inconsistencies in the testimony of the
petitioner and his wife.
After withdrawing his adjustment application, the
petitioner applied for asylum and withholding of removal.1 His
claim for asylum was predicated on an asserted fear of persecution
1
The petitioner also asked for relief under the United
Nations Convention Against Torture. Because this initiative was
not pursued before the BIA, we make no further reference to it.
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in Uganda premised on genuine and imputed political opinion.
Specifically, he alleged that in April of 1998, his father was
imprisoned — and ultimately never seen again — because he was an
active member of the Democratic Party of Uganda, a political party
that opposed the Ugandan President, Yoweri Museveni. He added
that between 1998 and 1999, he himself was detained by Ugandan
police on four occasions. Withal, he was not physically harmed
and the longest period he was detained was one day. The petitioner
also suggested that his more recent political activities would
subject him to persecution in Uganda: while living in the United
States, the petitioner has organized and participated in anti-
Museveni demonstrations.
The petitioner also averred that in 2009 his brother was
arrested in Uganda on a murder charge. The petitioner branded
this arrest as bogus, contending that the Museveni government had
fabricated allegations that his brother was practicing voodoo and
witchcraft on small children, including child sacrifice. Although
the brother was initially acquitted, he was subsequently convicted
and remains in prison. According to the petitioner, both the
arrest and prosecution were politically motivated, and his brother
is innocent.
The petitioner conceded removability in 2012 and later
testified at a merits hearing in the immigration court on January
27, 2014. At the conclusion of the hearing, the immigration judge
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(IJ) denied the petitioner's applications for asylum and
withholding of removal in a bench decision. The IJ denied the
asylum application as untimely, noting that the petitioner had not
alleged changed or extraordinary circumstances that could justify
the 13-year delay in seeking asylum. The IJ also concluded that
the petitioner had failed to establish his eligibility for
withholding of removal.
The petitioner appealed to the BIA. He argued that he
did not apply earlier for asylum because he was not then aware of
either the filing deadline or the severity of his brother's
circumstances. With respect to withholding of removal, he argued
that the IJ had failed to consider the connection between the
accusations of witchcraft against his brother and the petitioner's
membership in a family now associated with witchcraft. On June
10, 2015, the BIA rejected these arguments and dismissed the
petitioner's appeal.
The petitioner did not seek judicial review of the BIA's
decision but, on August 10, 2015, moved to reopen removal
proceedings. The petitioner submitted that a key witness — his
niece — had been unable to testify at his merits hearing because
she was mentally incapacitated due to the psychological trauma
that she suffered as a result of her father's (the petitioner's
brother's) immurement. He added that his niece had received asylum
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based on circumstances substantially similar to those that
pertained in his case.
The BIA denied the motion to reopen. It concluded that
the petitioner had failed to satisfy the requirements for
reopening, as he did not demonstrate that the motion was supported
by new, previously unavailable, material evidence. The BIA went
on to explain that the fact that the petitioner's niece was granted
asylum in 2012 was not a new fact supported by previously
unavailable evidence that could not have been presented at the
removal hearing; and it determined that a medical report submitted
by the petitioner did not demonstrate that his niece was incapable
of providing testimony at the merits hearing.
This timely petition for judicial review followed. The
only issue open to us is whether the BIA abused its discretion in
denying the petitioner's motion to reopen.
II. ANALYSIS
We preface our analysis with a summary of the applicable
legal standards. Motions to reopen removal proceedings are
contrary to "the compelling public interests in finality and the
expeditious processing of proceedings" and are thus disfavored.
Roberts v. Gonzales, 422 F.3d 33, 35 (1st Cir. 2005) (quoting Falae
v. Gonzáles, 411 F.3d 11, 14-15 (1st Cir. 2005)). Consistent with
this principle, the BIA enjoys wide latitude in deciding whether
to grant or deny such a motion. See INS v. Doherty, 502 U.S. 314,
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323 (1992). Judicial review of such a decision is solely for abuse
of discretion. See Roberts, 422 F.3d at 35; Falae, 411 F.3d at
14. Consequently, the BIA's decision will stand unless the
petitioner can show that the BIA committed an error of law or
exercised its judgment in an arbitrary, capricious, or irrational
manner. See Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir. 2007).
An alien seeking to reopen removal proceedings based on
newly discovered evidence must both "introduce new, material
evidence that was not available at the original merits hearing"
and "make out a 'prima facie case of eligibility for the relief
sought.'" Perez v. Holder, 740 F.3d 57, 62 (1st Cir. 2014)
(quoting Jutus v. Holder, 723 F.3d 105, 110 (1st Cir. 2013)). The
alien's motion "shall state the new facts that will be proven at
a hearing to be held if the motion is granted and shall be supported
by affidavits or other evidentiary material." 8 C.F.R.
§ 1003.2(c)(1).
With this framework in place, we turn to the case at
hand. To begin, the petitioner claims that the BIA abused its
discretion in finding that his niece's anticipated testimony was
not new, previously unavailable material evidence. The record
belies this claim: it shows that the anticipated testimony of the
petitioner's niece (who was granted asylum in 2012) was neither
new, previously unavailable, nor material. We explain briefly.
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As an initial matter, we note that the petitioner's
motion was procedurally flawed; it did not sufficiently articulate
what testimony his niece would provide if the proceedings were
reopened. This flaw is fatal because we — like the BIA — are
unable adequately to assess the materiality of the proffered
testimony. Though the petitioner stated conclusorily that his
niece had been granted asylum based on the same circumstances as
those asserted in his application, his motion failed to describe
the nature and extent of her expected testimony.
Nor was this the only shortcoming in the petitioner's
motion to reopen. For the most part, the petitioner failed to
support his motion with the requisite "affidavits or other
evidentiary material." 8 C.F.R. § 1003.2(c)(1).2 A party's
factual assertions in pleadings are not evidence and are not
sufficient to establish material facts. See Jupiter v. Ashcroft,
396 F.3d 487, 491 (1st Cir. 2005).
The petitioner attempts to excuse himself from this
requirement by arguing that information pertaining to his niece's
asylum application is confidential and, thus, within the ambit of
2 To be sure, the petitioner did include a piece of evidence
— the medical report — with his motion papers. But this report,
in and of itself, was insufficient to cure the petitioner's
failure.
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8 C.F.R. § 208.6.3 But this is whistling past the graveyard:
nothing in the cited regulation prevented the petitioner's niece
from recounting the substance of her anticipated testimony in an
affidavit or declaration. The regulation bars the government from
disclosing certain confidential information; it does not bar
either the asylum-seeker or prospective witnesses from testifying
about facts within their personal knowledge.
Apart from these procedural shortcomings, the
petitioner's proffer — as the BIA recognized — failed on the
merits: even if the petitioner had adequately stated the facts
that would be presented and duly supported that account with
affidavits or other evidentiary materials, the information that he
relied on was not new. The petitioner's argument is that the fact
that his niece was granted asylum under substantially the same
circumstances is new, previously unavailable, material evidence.
But the record shows with conspicuous clarity that the petitioner's
niece received asylum in 2012 — more than a year before the
petitioner's January 2014 removal hearing. The record also reveals
3Section 208.6(a) states in pertinent part that, with certain
exceptions not relevant here, "[i]nformation contained in or
pertaining to any asylum application . . . shall not be disclosed
without the written consent of the applicant . . . ." Relatedly,
section 208.6(b) states in pertinent part that "[t]he
confidentiality of other records kept by the Service and the
Executive Office for Immigration Review that indicate that a
specific alien has applied for asylum . . . shall also be protected
from disclosure."
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beyond any shadow of a doubt that the petitioner was aware of his
niece's asylum status prior to his merits hearing. After all, his
niece wrote a letter in support of his application for asylum and
withholding of removal in September of 2013 (in which she mentioned
her own asylum experience).
The petitioner's cause is not advanced by his assertion
that his niece would testify that she genuinely fears for his
safety should he be repatriated. Since these statements were
previously made in the niece's September 2013 letter, they can
scarcely be regarded as "new."4 See Morgan v. Holder, 634 F.3d
53, 61 (1st Cir. 2011) (explaining that evidence that is cumulative
of other evidence in the record is not "new" evidence sufficient
to warrant reopening).
To say more would be pointless. Given that the BIA
supportably found that the petitioner failed to introduce new,
4 Our conclusion that the niece's statements are not new
disposes of the matter. For the sake of completeness, however, we
note that Dr. Husson's medical report, relied on by the petitioner,
nowhere states, either directly or by fair implication, that the
petitioner's niece was unable to testify at the January 2014
removal hearing. Though the report notes that she "had
difficulties" discussing her father's alleged crimes during a
period that arguably included the date of the petitioner's removal
hearing, it does not attest that she was unable to testify.
Moreover, in September of 2013, the niece wrote a letter in
furtherance of her uncle's application that described the events
surrounding her father's arrest. This letter undercuts any
intimation in Dr. Husson's report that the petitioner's niece was
incapacitated during the time leading up to his January 2014 merits
hearing.
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previously unavailable, material evidence in connection with his
motion to reopen, it was within the BIA's discretion to deny the
motion without reference to whether the petitioner had made out a
prima facie case for asylum. See Perez, 740 F.3d at 62-63.
III. CONCLUSION
For the reasons elucidated above, we deny the petition
for judicial review. But although we need go no further, we think
it appropriate to note that this appears to be a case in which the
exercise of prosecutorial discretion may be appropriate under the
DHS's detention and removal priorities. See Memorandum from Jeh
Charles Johnson, Sec'y, U.S. Department of Homeland Sec., on
Policies for the Apprehension, Detention and Removal of
Undocumented Immigrants to Thomas S. Winkowski, Acting Dir., U.S.
Immigration & Customs Enf't, et al. (Nov. 20, 2014). We explain
briefly.
DHS divides its civil immigration enforcement priorities
into three categories of decreasing importance: (1) threats to
national security, border security, and public safety; (2)
misdemeanants and new immigration violators; and (3) aliens who
have been issued final removal orders. Id. at 3-4. DHS
acknowledges that it "must exercise prosecutorial discretion in
the enforcement of the law" and should exercise this discretion
"as early in the case or proceeding as possible in order to
. . . pursu[e] enforcement and removal of higher priority cases."
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Id. at 2. We are not convinced that DHS's stated enforcement
priorities are intended to cover someone in the petitioner's
situation.
The petitioner has meaningful family connections in the
United States and has presented credible testimony that he would
face a significant threat to his safety if he were to be returned
to Uganda, especially given his familial history of political
persecution in that country and his recent political activities in
the United States. Although the one significant blemish on the
petitioner's record as a law-abiding person — an incident in which
he was operating a motor vehicle while under the influence of
alcohol and left the scene of an accident — is serious and likely
qualifies under the letter of DHS's second priority category (for
"significant misdemeanors"), DHS's policy provides that removal
orders should be set aside if "there are factors indicating the
alien is not a threat to national security, border security, or
public safety." Id. at 5. Such factors include the alien's length
of time in the United States, the alien's family or community ties
in the United States, and other "compelling humanitarian factors."
Id. at 6. Here, it appears that the petitioner and his family
have long been opposed to the ruling regime in Uganda, opposition
which has not gone unnoticed and which the IJ plausibly concluded
would cause the petitioner to be exposed to imprisonment or more
grievous harm if he was repatriated.
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We summarize succinctly. Even though we find that the
petitioner's argument for reopening of removal proceedings fails
under the precedent established in this circuit, the
administration's enforcement priorities strongly indicate that the
petitioner should be a candidate for prosecutorial discretion.
After all, a removal decision should not be made or effectuated
"under a misapprehension of the governing departmental policy."
Ortiz v. Lynch, 640 Fed. App'x 42, 45 (2d Cir. 2016).
The petition for judicial review is denied.
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