Gyamfi v. Whitaker ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1093
AMMA ADU GYAMFI,
Petitioner,
v.
MATTHEW G. WHITAKER,
ACTING ATTORNEY GENERAL,
Respondent.
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 Fed. R. App. P. 43(c)(2), Acting Attorney General
Matthew G. Whitaker has been substituted for former Attorney
General Jefferson B. Sessions, III as the respondent.
THOMPSON, Circuit Judge. Petitioner Amma Adu Gyamfi
("Gyamfi") challenges the Board of Immigration Appeals's ("BIA")
denial of her motion to reopen and its decision not to exercise
its sua sponte authority to reopen her case and grant her request
for an adjustment of status. For the reasons we detail below, we
deny and dismiss Gyamfi's petition.
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, Mark Parrish. That
following April, Parrish filed an I-130 petition1 to get Gyamfi
green-card status as the spouse of a U.S. citizen, but when the
Department of Homeland Security ("DHS") issued a notice of intent
to deny the petition (because the newlyweds hadn't demonstrated
the legitimacy of their marriage), Parrish wound up admitting in
a 2009 DHS interview that he had made the petition as "a favor" to
Gyamfi. Consequently, he withdrew the petition, and DHS denied
Gyamfi's application for adjustment of status in April 2009.
1 An I-130 petition allows a U.S. citizen or lawful permanent
resident to sponsor an alien relative's application for permanent
resident status.
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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 (8 U.S.C. § 1227(a)(1)(B)).2 Over the
course of a couple of years (2009-2010) and a few hearings before
an immigration judge ("IJ"), Gyamfi would first pursue a new I-
130 petition, then withdraw it, and in the end, seek asylum
protection.3
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
2 Gyamfi also was charged as an alien who was inadmissible at the
time of entry because she procured, or sought to procure, an
immigration benefit by fraud or by willfully misrepresenting a
material fact, 8 U.S.C. § 1227(a)(1)(A), but that was later
withdrawn.
3 She testified at a September 2010 hearing that she never applied
for asylum in Italy, her home for thirteen years after leaving
Ghana in 1992. As for why she never mentioned harboring any fear
of returning to Ghana between her 2004 arrival in the U.S. and the
September 2010 hearing, she testified she had hoped to adjust
status through Parrish.
4 During the proceedings before the IJ, Gyamfi conceded
removability only as an alien who overstayed her visitor's visa.
5 Gyamfi has six children, five of whom are U.S. citizens and live
in the United States. Her eldest child, now 28 years old, is a
citizen of Ghana residing there. Her next two eldest, now 25 and
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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 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
§§ 1003.2(c)(2), 1003(c)(3)(i)-(iv). In addition, the BIA
declined to exercise its discretionary authority to reopen the
proceedings sua sponte, finding that Gyamfi failed to demonstrate
an exceptional situation that would warrant the exercise of its
sua sponte power, and she alleged "no current health issues
regarding [her I-130-petitioning daughter] or her other United
States citizen children that might warrant a finding of exceptional
circumstances."
Gyamfi timely petitioned this court for review.
ANALYSIS
Gyamfi offers up a smorgasbord of appellate contentions,
21 years old, were born in Italy, but are U.S. citizens residing
here. And she has three minor U.S. citizen children (ages 17, 12,
and 10), all of whom were born in the U.S. and live here now.
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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)).
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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 8 U.S.C. § 1229a(c)(7)(C)(i), an alien is
entitled to file one motion to reopen removal proceedings within
ninety days after the final order of removal. See id. (instructing
that, unless an exception applies, "the motion to reopen shall be
filed within 90 days of the date of entry of a final administrative
order of removal"); see also 8 C.F.R. § 1003.2(c)(2) (stating that,
save for specified exceptions, "an alien may file only one motion
to reopen removal proceedings (whether before the Board or the
Immigration Judge) and that motion must be filed no later than 90
days after the date on which the final administrative decision was
rendered in the proceeding sought to be reopened"); Neves v.
Holder, 613 F.3d 30, 32-33 (1st Cir. 2010)(per curiam). As for
6 We note here that Gyamfi makes the assertion that a petitioner
can file a motion to reopen either within ninety days of the final
administrative order or within 180 days due to exceptional
circumstances, citing INA § 240(b)(5)(c)(i), (e)(6)(C) -- this
provision has been repealed, and its replacement is codified at 8
U.S.C. § 1229a(b)(5)(C)(i). There, the reference to 180 days
concerns rescission of an order of removal issued because of an
alien's failure to appear: such a removal order can be rescinded
if an alien files a motion to reopen "within 180 days after the
date of the order of removal if the alien demonstrates that the
failure to appear was because of exceptional circumstances
. . . ." Sec. 1229a(b)(5)(C)(i). This is not in play in
Gyamfi's case, thus the 180-day cut-off is not applicable.
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the exceptions, Congress enacted a limited list. See 8 U.S.C. §
1229a(c)(7)(C)(ii)-(iv); 8 C.F.R. § 1003.2(c)(3).7
1. Did the BIA abuse its discretion?8
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
7 For example, 8 C.F.R. § 1003.2(c)(3) instructs that the ninety-
day rule
[s]hall not apply to a motion to reopen proceedings:
. . .
(ii) To apply or reapply for asylum or withholding of
deportation based on changed circumstances arising in
the country of nationality or in the country to which
deportation has been ordered, if such evidence is
material and was not available and could not have been
discovered or presented at the previous hearing;
(iii) Agreed upon by all parties and jointly filed.
Notwithstanding such agreement, the parties may contest
the issues in a reopened proceeding[.]
8 As a threshold matter, Gyamfi submits that the BIA stumbled out
of the starting gate when it deemed her motion opposed. Recall
that DHS's opposition to Gyamfi's motion to reopen was filed out
of time -- Gyamfi submitted a response to that late filing. But
we espy no error of law or abuse of discretion. As the government
correctly points out, considering a late-filed brief is not
proscribed, see 8 C.F.R. § 1003.2(g)(3), and regardless, the BIA
is duty-bound to use its independent judgment when facing these
motions, 8 C.F.R. § 1003.1(d)(1)(ii). And besides, Gyamfi does
not even argue that the BIA improperly based its denial of her
motion on the substantive arguments in DHS's papers. This
argument, then, is a nonstarter, so we move on to her primary
challenges.
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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 8 U.S.C. § 1229a(c)(7)(C)(i)'s
ninety-day bar.
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
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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 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3)(i)-
(iv). And absent an exception operating to prevent the ninety-
day rule from applying (Gyamfi doesn't actually argue that one
does), motions to reopen are subject to the ninety-day rule and
Gyamfi missed it. We see no abuse of discretion.
b. Equitable Tolling
Alternatively, Gyamfi argues the BIA erred in not
reopening her removal proceedings because she established "unusual
facts and exceptional circumstances" meriting the equitable
tolling of the ninety-day deadline for filing such motions.
Gyamfi submits that she's made the equitable tolling showing by,
first, demonstrating that she couldn't have known about her new I-
130 beneficiary status within ninety days of her original
proceedings and as such, her ignorance of what the future actually
would bring constitutes an extraordinary circumstance. As she
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puts it, "applying this statutory deadline does not serve the
interests of justice in this case." Second, she puts into the
"extraordinary circumstances" basket the BIA's alleged error in
neglecting to consider any factors besides the health of her
children.9 In particular, she emphasizes the hardship her removal
will have on her kids: if they return to Ghana with Gyamfi, they
will not enjoy a U.S. education, and Ghanaian high crime and
mortality rates, for example, would negatively affect them; and if
they stay in the U.S. without her, this also would negatively
impact them. The government responds that even if equitable
tolling was a viable avenue to relief in the immigration context,
the BIA did not abuse its discretion in finding that Gyamfi has
not made the requisite showing to support its use. Once again, we
agree with the government.
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
9 Gyamfi also points to the "five factors" laid out in Matter of
J-J-, 21 I. & N. Dec. 976 (B.I.A. 1997), saying the BIA's failure
to consider these factors constitutes legal error. To the extent
she means to argue that case to support her equitable tolling
argument, we fail to see its relevance -- Matter of J-J- does not
touch on equitable tolling.
- 10 -
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
10 Gyamfi tells us that we have previously "indicated that [we]
would follow the Ninth and Second Circuits[']" lead and apply
equitable tolling in this context, citing our opinion in Jobe v.
INS, 238 F.3d 96 (1st Cir. 2001) (en banc). Simply put, this is
not true, and we need not say more than that.
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cue from decisions past and assume, without deciding, that the
ninety-day rule is subject to equitable tolling. See Neves, 613
F.3d at 36 (citing Chedid, 573 F.3d at 37).
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-
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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.
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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: hardship to a
petitioner and her family; a petitioner's criminal history; the
severity and number of immigration violations; the petitioner's
cooperation with law enforcement; and whether removal would
comport with the government's policy objectives), thus depriving
her of due process. The government responds by challenging our
jurisdiction to entertain Gyamfi's protestations. Therefore,
let's first discuss the converging dynamic of the BIA's sua sponte
authority to reopen and our jurisdiction over its use of that
authority -- to the extent it exists.
11This is the same case Gyamfi mysteriously cited in support of
her equitable tolling claim.
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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 8 U.S.C. § 1252(a)(2)(D), which
reads in pertinent part: "Nothing in subparagraph (B) or (C), or
in any other provision of this chapter (other than this section)
which limits or eliminates judicial review, shall be construed as
precluding review of constitutional claims or questions of law
raised upon a petition for review filed with an appropriate court
of appeals in accordance with this section." 8 U.S.C.
§ 1252(a)(2)(D). But this court has yet to rule on whether
§ 1252(a)(2)(D) gives us jurisdiction to review (under certain
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circumstances) the BIA's decision not to reopen sua sponte. See
Lemus, 900 F.3d at 19 (citing Reyes, 886 F.3d at 188).
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 § 1252(a)(2)(D), so the fact that we announced such a blanket
rule then does not decide whether § 1252(a)(2)(D) gives us
jurisdiction today." Matias, 871 F.3d at 68. And we also observed
that "we have previously identified § 1252(a)(2)(D) as a potential
jurisdiction-restorer over constitutional claims brought in
motions for sua sponte relief." Id. at 68-69 (citing Guerrero v.
Holder, 766 F.3d 122, 126 n.12 (1st Cir. 2014)). However, "whether
§ 1252(a)(2)(D) has any effect on Luis's no-jurisdiction rule," as
noted, remains an open question. Id. at 69.
Some of our sister circuits have tackled § 1252(a)(2)(D)
in this context. For example, the Seventh Circuit concluded that
§ 1252(a)(2)(D) gives it jurisdiction to consider legal and
constitutional claims presented in appeals to the BIA's sua sponte
authority. Cevilla v. Gonzales, 446 F.3d 658, 660 (7th Cir. 2006)
(reasoning that "the general 'no law to apply' principle of
judicial review of administrative action has been superseded in
the immigration context by 8 U.S.C. § 1252(a)(2)[(D)]"). So in
the Seventh Circuit, appellate jurisdiction "extends to the
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Board's refusal to reopen . . . removal proceedings sua sponte"
when a constitutional claim or legal question is raised relevant
to an underlying order of removal in the immigration context.
Zambrano-Reyes v. Holder, 725 F.3d 744, 751 (7th Cir. 2013).12
Other circuits, however, have a different take: in the Sixth
Circuit, for instance, § 1252(a)(2)(D) was found not to confer
jurisdiction in the constitutional-claim context. See, e.g., Rais
v. Holder, 768 F.3d 453, 464 (6th Cir. 2014) (explaining that
§ 1252(a)(2)(D) "has no bearing on the question of whether courts
may review the BIA's exercise of its sua sponte authority, for
which no chapter of any legislation provides"); see also Zakar v.
Sessions, 739 Fed. Appx. 774, 778 (6th Cir. 2018); Gor v. Holder,
607 F.3d 180, 188 (6th Cir. 2010).
So, all told, some jurisdictions have found
§ 1252(a)(2)(D) to be a game-changer; others have not. But when
faced with the same argument in both Lemus, 900 F.3d at 19, and
Reyes, 886 F.3d at 188, we declined to decide this issue, and we
12 Some other circuits agree. See, e.g., Bonilla v. Lynch, 840
F.3d 575, 588 (9th Cir. 2016) (deciding that the court "has
jurisdiction to review [BIA] decisions denying sua sponte
reopening for the limited purpose of reviewing the reasoning behind
the decisions for legal or constitutional error"); Nawaz v. Holder,
314 Fed. Appx. 736, 737 (5th Cir. 2009) (per curiam) (concluding
that the court did not have jurisdiction to review sua sponte
denial unless "constitutional challenges . . . were raised before
the BIA"); Tamenut v. Mukasey, 521 F.3d 1000, 1005 (8th Cir. 2008)
(per curiam) (same).
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do so again today. That is because § 1252(a)(2)(D) "only arguably
applies to a petitioner's constitutional or legal challenges if
they are colorable," Lemus, 900 F.3d at 19 (citing Ayeni v. Holder,
617 F.3d 67, 71 (1st Cir. 2010)), and here, even if § 1252(a)(2)(D)
serves as a basis for jurisdiction, Gyamfi has not set forth any
colorable claims. We explain.
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 v. Holder, 617 F.3d 67, 71 (1st Cir. 2010)),
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and "mere 'invocation of the Due Process Clause does not create a
constitutional claim for the purpose of 8 U.S.C. § 1252(a)(2)(D),'"
id. (quoting Cruz-Orellana v. Sessions, 878 F.3d 1, 5 (1st Cir.
2017)).
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
In sum, Gyamfi cannot prevail -- even if § 1252(a)(2)(D)
were to provide an arguable basis for jurisdiction over
13 We are baffled by Gyamfi's reading of Matter of J-J-. That
case makes no mention of a due process limitation to the BIA's
discretion to reopen removal proceedings, much less articulates a
five-factor test for the supposed limitation. Rather, it is
evident from our own research that the factors Gyamfi recites are
borrowed from a 2001 INS directive. See Memorandum regarding
Motions to Reopen for Consideration of Adjustment of Status from
Bo Cooper, General Counsel for Immigration and Naturalization
Service, to Regional Counsel (May 17, 2001),
https://www.aila.org/infonet/ins-standards-to-join-a-motion-to-
reopen. Far from governing the BIA's discretion to reopen a case
sua sponte, the factors listed in this memorandum guide DHS's
discretion in deciding whether to join a petitioner in her motion
to reopen. Id. This is not a matter of concern for the court,
and that Gyamfi would lure us into this investigative rabbit hole
at all is troublesome.
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constitutional claims, Gyamfi has no colorable constitutional or
legal claim on which we might base jurisdiction.
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.
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