Evelyn Takang v. William Barr ( 2020 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-2162
EVELYN NTUI TAKANG,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Submitted: November 15, 2019 Decided: January 3, 2020
Before AGEE and QUATTLEBAUM, Circuit Judges, and TRAXLER, Senior Circuit
Judge.
Petition denied in part, dismissed in part by unpublished per curiam opinion.
Ronald D. Richey, LAW OFFICE OF RONALD D. RICHEY, Rockville, Maryland, for
Petitioner. Joseph H. Hunt, Assistant Attorney General, Stephen J. Flynn, Assistant
Director, Lindsay Donahue, 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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Evelyn Ntui Takang, a native and citizen of the Republic of Cameroon, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying her second motion to
reopen her removal proceedings. For the following reasons, we deny the petition in part
and dismiss it in part.
I.
In December 2002, the BIA dismissed Takang’s appeal from the Immigration
Judge’s (“IJ”) order finding her removable and denying her applications for asylum and
withholding of removal. Takang’s applications were based on her claimed past persecution
in Cameroon due to her political beliefs and her role as an activist for the secession of that
country’s Anglophone regions. 1 The IJ found that Takang’s claims were frivolous and not
credible, pointing to several discrepancies in her account and her overall demeanor during
the deportation hearing, which he described as “non-sincere,” “affective,” and “evasive.”
A.R. 401–02. Soon after dismissing Takang’s appeal, the BIA denied her first motion to
reopen. Takang did not petition this Court for review of either decision.
Over fifteen years later, in September 2018, Takang filed the underlying motion to
1
Following Germany’s defeat in World War I, the colony of German Kamerun was
divided between France and Great Britain, with the French administering the bulk of the
territory and the British controlling the northwest and southwest regions. A.R. 57–64. In
1961, the Anglophone areas gained their independence, with the northwest region opting
to join Nigeria and the southwest region reunifying with the already-independent
Francophone region. Id. Despite this reunification, the Anglophone and Francophone
divisions have persisted. A.R. 55, 64–70, 739.
2
reopen with the BIA, alleging that a material change in conditions in Cameroon affecting
members of her proffered social group warranted granting the untimely and number-barred
motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(ii); accord 8 C.F.R. § 1003.2(c)(3)(ii).
The BIA denied Takang’s motion for three independent reasons: (1) it did not comply with
the BIA’s procedural requirements; (2) it was filed outside of the prescribed 90-day time
bar and Takang had not submitted sufficient evidence of changed country conditions to
qualify for an exception; and (3) this case did not warrant the BIA’s exercise of its authority
to reopen Takang’s deportation proceedings sua sponte.
Takang timely filed a petition for review. This Court has jurisdiction under 8 U.S.C.
§ 1252(a)(1), (b)(2). See also Gallanosa v. United States, 785 F.2d 116, 119 (4th Cir. 1986)
(“Final agency denial of a motion to reopen in order to apply for suspension of deportation
is a final order of deportation reviewable only by a court of appeals[.]”).
II.
A.
An alien may file one motion to reopen within 90 days of a final order of removal.
8 C.F.R. § 1003.2(c)(2); see also 8 U.S.C. § 1229a(c)(7)(A), (C). These limits do not apply
if the basis for the motion is to seek asylum or withholding of removal “based on changed
circumstances arising in the country of nationality . . . 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. § 1003.2(c)(3)(ii). The alien “bears a ‘heavy burden’” of proving that if proceedings
were reopened, with all the attendant delays, the newly presented evidence would likely
3
change the result in the case. In re Coehlo, 20 I. & N. Dec. 464, 472 (BIA 1992) (quoting
INS v. Abudu, 485 U.S. 94, 110 (1988)).
We review the denial of a motion to reopen for abuse of discretion, 8 C.F.R.
§ 1003.2(a); INS v. Doherty, 502 U.S. 314, 323–24 (1992), and afford “extreme deference
[to the BIA], given that motions to reopen are disfavored because every delay works to the
advantage of the deportable alien who wishes to remain in the United States,” Sadhvani v.
Holder, 596 F.3d 180, 182 (4th Cir. 2009). 2 We will reverse the BIA “only if the decision
is arbitrary, capricious, or contrary to law.” Id. The BIA’s decision “need only be reasoned,
not convincing.” Lawrence v. Lynch, 826 F.3d 198, 203 (4th Cir. 2016).
B.
In her petition for review, Takang contends that the BIA (1) abused its discretion in
denying her second motion to reopen and (2) violated her right to due process by failing to
address the entirety of the evidence she presented. 3 We will address each argument in turn.
1.
The applicable regulations require that “[a] motion to reopen proceedings for the
purpose of submitting an application for relief must be accompanied by the appropriate
application for relief and all supporting documentation.” 8 C.F.R. § 1003.2(c)(1) (emphasis
added). The record establishes that Takang’s second untimely motion to reopen did not
2
We have omitted internal quotation marks, alterations, and citations here and
throughout this opinion, unless otherwise noted.
3
To the extent Takang alleges that the BIA erred in declining to exercise its
authority to reopen the case sua sponte, it is well settled that we lack jurisdiction to review
such a decision. See Lawrence, 826 F.3d at 206–07; Mosere v. Mukasey, 552 F.3d 397,
400–01 (4th Cir. 2009) (collecting cases). Therefore, we dismiss this portion of her petition.
4
comply with this requirement. See 8 C.F.R. § 1208.4(b)(3)(ii) (stating that an alien who
wishes to file an asylum application “[a]fter completion of exclusion, deportation, or
removal proceedings” must do so “in conjunction with a motion to reopen pursuant to 8
C.F.R. part 1003 where applicable, with the Immigration Court having jurisdiction over
the prior proceeding”). The BIA has made clear that “a failure to submit an application for
relief, as required by [8 C.F.R. § 1003.2(c)(1)], will typically result in the Board’s denial
of the motion.” In re Yewondwosen, 21 I. & N. Dec. 1025, 1026 (BIA 1997) (en banc).
And that is what happened here, as the BIA’s order provided that “[Takang’s] motion to
reopen based upon changed country conditions in her country of nationality and
citizenship, Cameroon, is not supported by an application for relief as required by 8 C.F.R.
§ 1003.2.” A.R. 3.
We—along with other courts of appeals across the country—have consistently
found that the BIA does not abuse its discretion when it dismisses a motion to reopen
because the petitioner failed to comply with its procedural requirements. See, e.g., Ghosh
v. Att’y Gen., 629 F.2d 987, 989 (4th Cir. 1980) (holding that “[i]t is not an abuse of
discretion to deny a motion to reopen deportation proceedings when the motion” does not
comply with the BIA’s procedural requirements); accord Saydur v. Holder, 597 F. App’x
14, 15–16 (2d Cir. 2015) (per curiam) (“The BIA did not abuse its discretion in concluding
that [the petitioner’s] failure to include an asylum application with his motion to reopen
precluded it from considering his evidence of changed country conditions[.]”); Majeed v.
Att’y Gen., 480 F. App’x 146, 148 (3d Cir. 2012) (per curiam) (“Importantly, [the
petitioner’s] motion to reopen was not ‘accompanied by the appropriate application for
5
relief,’ as required by the plain language of § 1003.2(c)(1). Under these circumstances, we
cannot say that the BIA abused its discretion in denying the motion to reopen[.]”); Jiang v.
Holder, 639 F.3d 751, 757 (7th Cir. 2011) (stating that the BIA would be within its
discretion to deny a motion to reopen for failure to submit a new asylum application);
Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1064 (9th Cir. 2008) (“The [motion to reopen]
. . . was not accompanied by an application for cancellation of removal. . . . Under the
circumstances present here, the BIA did not abuse its discretion in determining that [the
petitioner] did not satisfy the procedural requirements for [his motion].”); Waggoner v.
Gonzales, 488 F.3d 632, 639 (5th Cir. 2007) (holding that the BIA did not abuse its
discretion in denying a motion to reopen “based upon changed country conditions in Fiji
indicating an increased risk of violence against Indo-Fijians” where the petitioner did not
submit an appropriate application for relief).
We see no reason to depart from this long line of authority. Therefore, we discern
no abuse of the BIA’s considerable discretion in denying Takang’s motion to reopen and
deny this portion of her petition for review. 4
4
Even if we were to consider the merits of Takang’s abuse-of-discretion argument,
we would reach the same conclusion. All motions to reopen based on changed country
conditions must “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). “In determining whether evidence accompanying a motion to reopen
demonstrates a material change in country conditions that would justify reopening, [the
BIA] compare[s] the evidence of country conditions submitted with the motion to those
that existed at the time of the merits hearing below.” In re S-Y-G-, 24 I. & N. Dec. 247,
253 (BIA 2007). “The BIA will reopen asylum proceedings only if the evidence proves
that a relevant change in country conditions has occurred.” Lin v. Holder, 771 F.3d 177,
188 (4th Cir. 2014). “Evidence that is largely cumulative of that already in the record does
not meet the burden required for reopening.” In re S-Y-G-, 24 I. & N. Dec. at 253.
6
2.
Takang’s petition also posits that the BIA violated her right to due process by failing
to address the entirety of the evidence she included in her second motion to reopen. This
argument is meritless.
To be sure, removal proceedings generally are subject to the requirements of
procedural due process. Rusu v. INS, 296 F.3d 316, 320 (4th Cir. 2002). But because
Takang’s motion to reopen sought only a “purely discretionary form[] of relief,” she
possessed no property or liberty interest in it. See Dekoladenu v. Gonzales, 459 F.3d 500,
508 (4th Cir. 2006) (characterizing a motion to reopen as seeking a “purely discretionary
form[] of relief” and concluding that the petitioner could not claim a due process violation
based on the dismissal of his request “to reopen seeking adjustment of status” because it
amounted to a purely discretionary form of relief in which he had neither a liberty nor
property interest), abrogated on other grounds by Dada v. Mukasey, 554 U.S. 1 (2008);
accord Lin v. U.S. Att’y Gen., 881 F.3d 860, 869 (11th Cir. 2018) (“[W]e have specifically
identified both motions to reopen and adjustment of status as discretionary forms of relief
as to which there is no constitutionally protected interest.”).
Moreover, the BIA has made clear that it is “not inclined to favorably exercise discretion
[on a motion to reopen] in the case of an alien, such as the applicant, who was previously
found to have offered incredible testimony to gain immigration benefits.” Id. at 252.
Here, the record abounds with evidence that the intolerance of political dissent,
particularly Anglophone opposition, has remained constant before and since Takang’s
initial removal proceedings in 1998 given the Cameroonian government’s long and
troubled history of attempting to suppress these political activities. While these conditions
are unabated, they are not “changed.” The BIA, therefore, did not abuse its discretion in
denying the motion as untimely.
7
Therefore, she had no due process right for the BIA to violate. See Smith v. Ashcroft,
295 F.3d 425, 429 (4th Cir. 2002) (holding that in order to make out a due process claim,
a claimant must “first establish that he had a property or liberty interest at stake”). As a
result, we deny this portion of her petition as well. 5
III.
Accordingly, we deny in part and dismiss in part Takang’s petition for review. We
dispense with oral argument because the facts and legal contentions are adequately
presented in the materials before this Court and argument would not aid in the decisional
process.
PETITION DENIED IN PART, DISMISSED IN PART
5
We would reach the same conclusion if we decided the merits of Takang’s due
process argument. To succeed on such a claim, Takang must demonstrate a procedural
defect that rendered the proceedings “fundamentally unfair” and show “that the defect
prejudiced the outcome of the case.” Nardea v. Sessions, 876 F.3d 675, 681 (4th Cir. 2017).
We will find prejudice “only when the rights of an alien have been transgressed in such a
way as is likely to impact the results of the proceedings.” Id. But Takang fails to show what
evidence the BIA failed to consider and how that evidence would have impacted the results
of the proceeding.
Indeed, the record shows that the BIA did all that was required of it here. Though
“[t]he BIA may not selectively consider evidence, ignoring that evidence that corroborates
an alien’s claims and calls into question the conclusion the judge is attempting to reach,”
it is “not required to discuss every piece of evidence in the record[.]” Chen, 742 F.3d at
179. Here, the BIA considered the issues raised and announced its “decision[] in terms
sufficient to enable [this Court] to perceive that they have heard and thought and not merely
reacted.” Id. A lengthier decision would not have altered the incontrovertible deficiencies
in Takang’s motion.
8