Malm v. U.S. Immigration & Naturalization Service ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ABLAVI GLORIA MALM, a/k/a Ablavi 
Djidjo Malm,
Petitioner,
v.
 No. 00-2371
U.S. IMMIGRATION & NATURALIZATION
SERVICE; JOHN ASHCROFT, Attorney
General,
Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals.
(A75-381-338)
Argued: June 6, 2001
Decided: August 10, 2001
Before WILLIAMS, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished opinion. Judge Gregory wrote the opinion,
in which Judge Williams and Judge King joined.
COUNSEL
ARGUED: Morton Harvey Sklar, Executive Director, WORLD
ORGANIZATION AGAINST TORTURE, USA, Washington, D.C.,
for Petitioner. Ernesto Horacio Molina, II, Senior Litigation Counsel,
Office of Immigration Litigation, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
2 MALM v. IMMIGRATION & NATURALIZATION SERVICE
ON BRIEF: Helen Harnett, Legal Intern, WORLD ORGANIZA-
TION AGAINST TORTURE, USA, Washington, D.C.; Patricia
Ruble, Consulting Attorney, Melissa Kronstain, Consulting Attorney,
Jen Smith, Legal Intern, Dana Thompson, Legal Intern, CATHOLIC
UNIVERSITY LAW SCHOOL, Washington, D.C., for Petitioner.
David W. Ogden, Assistant Attorney General, David V. Bernal,
Assistant Director, Office of Immigration Litigation, Civil Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
GREGORY, Circuit Judge:
Ablavi Djidjo Malm, a native and citizen of Togo, appeals the
Board of Immigration Appeals’ ("Board") order denying her second
motion to reopen her removal proceedings for failure to adhere to the
numerical and time limitations on motions to reopen set forth in 8
C.F.R. § 3.2(c)(2) (2000). Finding no reversible error, we affirm.
I.
Malm entered the United States on October 29, 1994, as a tourist.
After overstaying her tourist visa, Malm filed for political asylum on
October 20, 1997. Because the Immigration and Naturalization Ser-
vice ("INS") was not kept apprised of Malm’s current address, Malm
did not attend her asylum hearing and her case was closed for failure
to appear. On February 4, 1998, the INS served Malm with a notice
to appear, charging her with remaining in the United States longer
than permitted in violation of § 237(a)(1)(B) of the Immigration and
Nationality Act ("INA"). See 8 U.S.C.A. § 1227(a)(1)(B) (West
1999).
MALM v. IMMIGRATION & NATURALIZATION SERVICE 3
After Malm failed to show for her hearing on April 15, 1998, the
immigration judge ("IJ") entered a removal order against her in
absentia. On July 24, 1998, Malm filed a motion to reopen her
removal proceedings and requested a stay of removal. The IJ denied
the motion and request for a stay, finding that (1) a notice of hearing
was sent to Malm at her last known address; (2) Malm failed to show
that she filed a change of address form with the INS; (3) Malm failed
to show any exceptional circumstances justifying her failure to
appear; and (4) Malm’s motion to reopen was untimely as it was filed
more than ninety days after the entry of the order of deportation.
On February 7, 2000, the Board affirmed the IJ’s denial of her
motion to reopen. The Board based its decision on (1) Malm’s failure
to show that a reopening was warranted; (2) its determination that she
received notice of her deportation hearing at her last known address;
and (3) its finding that the person Malm attempted to blame for her
failure to appear was not an attorney or someone authorized to prac-
tice before the INS or the Board and therefore Malm could not make
out a claim for ineffective assistance of counsel. Malm subsequently
filed a petition for review with this court, which was dismissed as
untimely filed.
Malm filed a second motion to reopen on May 26, 2000, seeking
to apply for asylum and benefits under the Convention Against Tor-
ture and Other Cruel, Inhuman or Degrading Treatment or Punish-
ment ("CAT"). Malm again requested a stay of removal. The Board
denied the motion based on 8 C.F.R. § 3.2(c)(2) (2000), which pro-
vides that an immigrant may file only one motion to reopen and such
motion must be filed no later than ninety days after the date of the
final order of deportation. The Board concluded that Malm had
exceeded the numerical limitation set out in the regulation and that
the motion was not timely filed. Further, the Board noted that Malm
did not fall within the limited exception to the numerical and time
limitations applicable to motions to reopen because her motion did
not depend 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." 8 C.F.R.
§ 3.2(c)(3)(ii). Malm filed a timely notice of appeal in this court.
4 MALM v. IMMIGRATION & NATURALIZATION SERVICE
II.
Although Malm raises troubling allegations of abuse and violence
at the hands of the Government of Togo, the underlying issue before
us is relatively simple. Malm claims that the time and numerical
restrictions for filing a motion to reopen cannot apply to newly pres-
ented claims for protection under CAT. For the reasons discussed
below, we affirm the Board’s order denying Malm’s second motion
to reopen.
A.
The Foreign Affairs Reform and Restructuring Act of 1998
("FARRA"), § 2242, Pub. L. No. 105-277, 112 Stat. 2681, 2681-822
(Oct. 21, 1998), implemented Article 3 of CAT in the United States.
Article 3 of CAT states that "[n]o State Party shall expel, return (‘re-
fouler’) or extradite a person to another State where there are substan-
tial grounds for believing that he would be in danger and subjected
to torture." Malm claims that CAT "prohibit[s] a return to torture
under any circumstance, and that the time and numerical limitations
of the INS administrative regulations cannot be relied upon to deny
at least one full and fair opportunity to have a CAT claim properly
considered." (Appellant’s Br. at 15-16). In support of her argument,
Malm notes that neither the provisions of the treaty nor the reserva-
tions adopted by the Senate in ratifying the treaty provide for any time
limitations on filing a claim under Article 3 of CAT.
We first address Malm’s argument that she was not given an
opportunity to pursue her claims and conclude that her procedural
predicament was caused by her own failure to timely pursue relief.
First, Malm did not provide the INS with a current address, thus fail-
ing to appear for her scheduled hearing and abandoning her asylum
claim in the immigration court. Second, Malm’s initial motion to
reopen was untimely filed in the immigration court. Although Malm
could have raised arguments before this court regarding her lack of
knowledge as to the hearing date, and by extension, the deadline for
filing a motion to reopen, her notice of appeal before this court was
untimely filed. Third, Malm’s second motion to reopen was also
untimely filed with the Board. Although the INS argues that the final
order in Malm’s case was entered on April 15, 1998, when the IJ
MALM v. IMMIGRATION & NATURALIZATION SERVICE 5
entered a removal order in absentia, the Board used the date of its
denial of Malm’s first motion to reopen in determining the timeliness
of her second motion. Even using the later date of February 7, 2000,
Malm’s second motion to reopen was still untimely.
At oral argument, however, Malm’s counsel claimed that she
should have been given an additional thirty days (the time period to
appeal an IJ’s decision to the Board) to file her motion to reopen pur-
suant to 8 C.F.R. § 3.39 (2000). Although Malm alluded to this thirty
day extension in her reply brief, she did not raise it in her initial brief
on appeal. We have held that "an issue first argued in a reply brief is
not properly before a court of appeals." Cavallo v. Star Enter., 100
F.3d 1150, 1152 (4th Cir. 1996). Even if we were to consider this
argument on the merits, we note that it is without merit. Section
1229a(c)(6)(C)(i) clearly states that a motion to reopen must be "filed
within 90 days of the date of entry of a final administrative order of
removal." Assuming, without deciding, that Malm’s order of removal
became final on the later date of February 7, 2000, when the Board
denied her initial motion to reopen, her second motion to reopen was
still untimely filed.1 The extra thirty day period referred to in 8 C.F.R.
§ 3.39 applies only in the determination of when the order of an IJ
becomes final where no appeal is taken to the Board; it has no bearing
on the timeliness of Malm’s motion to reopen.2
Finally, Malm was given an opportunity to file a motion to reopen
to apply for protection under CAT pursuant to the special regulatory
procedures provided by the INS. On February 19, 1999, the INS pub-
lished an interim rule implementing FARRA, permitting aliens whose
1
We note that the filing of Malm’s second motion to reopen did not
affect the finality of the Board’s February 7, 2000 order. See Stone v.
INS, 514 U.S. 386, 405 (1995).
2
Malm’s counsel also raised an issue at oral argument and in her reply
brief that this time period should have been equitably tolled. Equitable
tolling, however, "is appropriate only when the circumstances that cause
a [party] to miss a filing deadline are out of his hands. . . . For this rea-
son, ‘[e]quitable tolling is unavailable where a party fails to exercise due
diligence.’" Jobe v. INS, 238 F.3d 96, 100 (1st Cir. 2001) (citations omit-
ted). Given our conclusion that Malm failed to timely seek relief, we find
that equitable tolling is not an appropriate remedy in this case.
6 MALM v. IMMIGRATION & NATURALIZATION SERVICE
cases became final before March 22, 1999, to apply for protection
under CAT on or before June 21, 1999. 8 C.F.R. § 208.18(b)(2)
(2000). In order to ensure that such aliens had a full and fair opportu-
nity to present their claims under CAT, the regulation states that:
Such motions shall be governed by §§ 3.23 and 3.2 of this
chapter, except that the time and numerical limitations on
motions to reopen shall not apply and the alien shall not be
required to demonstrate that the evidence sought to be
offered was unavailable and could not have been discovered
or presented at the former hearing. The motion to reopen
shall not be granted unless: (i) The motion is filed within
June 21, 1999; and (ii) The evidence sought to be offered
establishes a prima facie case that the applicant’s removal
must be withheld or deferred under §§ 208.16(c) or
208.17(a).
Id. Malm, however, did not file her motion to reopen seeking protec-
tion under CAT until May 26, 2000.
Because Malm repeatedly missed available opportunities to pursue
her claims, we cannot agree with her argument that she has been
denied a fair opportunity to present her claims under CAT.
B.
Having satisfied ourselves that Malm had an opportunity to pursue
relief under CAT, we turn to her argument that the Board improperly
denied her second motion to reopen. We review the Board’s denial of
a motion to reopen for abuse of discretion, INS v. Doherty, 502 U.S.
314, 323-24 (1992); Yanez-Popp v. INS, 998 F.2d 231, 234 (4th Cir.
1993), and its decision will be upheld absent a showing that it was
arbitrary or capricious. Gottesman v. INS, 33 F.3d 383, 389 (4th Cir.
1994). A denial of a motion to reopen must be reviewed with extreme
deference, since immigration statutes do not contemplate reopening
and the applicable regulations disfavor motions to reopen. M.A. v.
INS, 899 F.2d 304, 308 (4th Cir. 1990) (en banc).
We find that the Board did not abuse its discretion in denying
Malm’s motion to reopen. Because we conclude that Malm has not
MALM v. IMMIGRATION & NATURALIZATION SERVICE 7
timely filed her request for relief under CAT, we now address her
alternative argument that the time and numerical limitations on such
motions are invalid as applied to immigrants who are likely to suffer
torture upon their return. The First Circuit recently rejected a similar
argument, finding that the petitioner:
points to nothing in the convention or legislation that pre-
cludes the United States from setting reasonable time limits
on the assertion of claims under the convention in connec-
tion with an ongoing proceeding or an already effective
order of deportation. Even in criminal cases, constitutional
and other rights must be asserted in a timely fashion.
Foroglou v. Reno, 241 F.3d 111, 113 (1st Cir. 2001). We agree with
the First Circuit; neither CAT nor FARRA affirmatively indicate that
relief must be available notwithstanding temporal or numerical limita-
tions.
Further, we note that in passing a resolution of ratification, the
United States Senate specifically stated that articles one through six-
teen of CAT are not self-executing. 136 Cong. Rec. S17486, S17492
(Oct. 27, 1990). A treaty that is not self-executing is enforceable only
to the extent that it is implemented by Congress. As noted by the INS,
none of FARRA’s provisions obviated the previously established
numerical or time limitations. Rather, FARRA § 2242(b) specifically
delegated authority to the Attorney General to implement regulations
giving effect to CAT. The INS argues that Congress was aware that
it had previously ordered the Attorney General to implement numeri-
cal and temporal limitations on motions to reopen. Despite its knowl-
edge of these limitations, it failed to displace them in enacting
FARRA, giving rise to the inference that Congress did not intend to
modify its direction to the Attorney General to set time and numerical
limitations. See Brown & Williamson Tobacco Corp. v. FDA, 153
F.3d 155, 170 (4th Cir. 1998), aff’d 529 U.S. 120 (2000); see also
Bob Jones Univ. v. United States, 461 U.S. 574, 599-601 (1983).
We need not, however, rely on Congressional inaction to uphold
the Board’s application of the time and numerical limitations. Even
assuming that FARRA is ambiguous as to whether Congress intended
to retain these limitations in this context, we find that the Board’s
8 MALM v. IMMIGRATION & NATURALIZATION SERVICE
interpretation is reasonable and therefore entitled to deference under
the principles of construction established by the Supreme Court in
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837, 844 (1984). In Chevron, the Supreme Court stated that "‘[t]he
power of an administrative agency to administer a congressionally
created . . . program necessarily requires the formulation of policy and
the making of rules to fill any gap left, implicitly or explicitly, by
Congress.’" Id. at 843 (quoting Morton v. Ruiz, 415 U.S. 199, 231
(1974)).
The Supreme Court recognized that an agency often must reconcile
competing policy objectives in implementing procedures. Here, the
Attorney General was faced with the need to achieve finality in
deportation or removal cases, see INS v. Abudu, 485 U.S. 94, 108-10
(1988), and the desirability of ensuring that every alien has some
opportunity to apply for CAT protection. In implementing regulations
to carry out the CAT objectives, the Attorney General afforded all
aliens at least some opportunity to file a CAT claim by setting a June
21, 1999 deadline to file a motion to reopen and waiving the general
numerical and temporal limitations for cases which had attained final-
ity before March 22, 1999. 8 C.F.R. § 208.18(b)(2) (2000). The limi-
tations are still applicable to all other motions to reopen, thus
retaining the policy goal of achieving finality in immigration cases.
If the Attorney General’s "choice represents a reasonable accom-
modation of conflicting policies that were committed to the agency’s
care by the statute, [the reviewing court] should not disturb it unless
it appears from the statute or its legislative history that the accommo-
dation is not one that Congress would have sanctioned." Chevron, 467
U.S. at 844 (quotation omitted). Because we find that the numerical
and temporal limitations of 8 C.F.R. § 3.2, coupled with the extension
of time to apply for CAT protection pursuant to 8 C.F.R.
§ 208.18(b)(2), reasonably accommodate these conflicting policies,
we reject Malm’s invitation to overturn these limitations in the CAT
context.
III.
For the foregoing reasons, we affirm the Board’s order denying
Malm’s second motion to reopen.
AFFIRMED