Miliyon Ethiopis v. William Barr ( 2020 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-1237
MILIYON A. ETHIOPIS,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: September 10, 2020 Decided: October 14, 2020
Before DIAZ, THACKER, and HARRIS, Circuit Judges.
Petition for review denied by unpublished per curiam opinion.
ARGUED: David Carlos Baluarte, WASHINGTON & LEE UNIVERSITY SCHOOL OF
LAW, Lexington, Virginia, for Petitioner. Joseph D. Hardy, Jr., UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Joseph
H. Hunt, Assistant Attorney General, Anthony C. Payne, Assistant Director, Civil Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Miliyon Ethiopis (“Petitioner”), a native of Ethiopia, petitions for review of an order
of the Board of Immigration Appeals (“BIA”) denying his second motion to reopen his
removal proceedings as untimely and number-barred. 1 In his second motion to reopen,
Petitioner argues that the Ethiopian government discriminatorily denationalized him by
refusing to issue him a passport in 2011, and that his denationalization constitutes changed
country conditions that allow him to file his second motion despite its non-compliance with
the time and number restrictions set out in 8 C.F.R. § 1003.2(c)(2). Because Petitioner
could have raised this exact argument when he filed his first motion to reopen in December
2011 -- six and a half years before he filed his second motion -- we deny the petition for
review.
I.
Petitioner was born in Ethiopia in 1973 to a father of Eritrean ethnicity 2 and a mother
of Oromo ethnicity. 3 His family owned several businesses in Ethiopia, including a
successful dry cleaning business. After a border war erupted between Ethiopia and Eritrea
in 1998, the Ethiopian government arrested and deported Petitioner’s father and
confiscated the family’s businesses, money, and property. For the next three years,
1
A second motion to reopen is number-barred pursuant to 8 C.F.R. §1003.2(c)(2)
because that section allows a party to “file only one motion to reopen deportation or
exclusion proceedings.”
2
Eritrea is an African country that shares Ethiopia’s northern border.
3
The Oromo are the largest ethnic group in Ethiopia.
2
Petitioner frequently questioned the Ethiopian government about his father’s deportation
and the seizure of his family’s assets, which eventually led to the Ethiopian government
arresting Petitioner and detaining him for three months. Petitioner recounts that during the
time he was detained, he was beaten, subjected to harsh interrogations, harassed because
of his Eritrean heritage, and accused of collaborating with the Eritrean government. Once
released, Petitioner decided to “leave Ethiopia for good,” but the Ethiopian government
confiscated his passport and refused to issue him an exit visa. A.R. 48. 4 As a result, he
was unable to leave the country legally. Undeterred, Petitioner claims that he used a fake
passport to board a flight out of Ethiopia and arrived in the United States on July 22, 2001.
Petitioner’s lengthy immigration proceedings began less than a year after his arrival
in the United States when he requested asylum, withholding of removal, and protection
under the Convention Against Torture. On June 18, 2003, the Immigration Judge (“IJ”)
who heard his claims for relief denied all three, finding Petitioner’s application to be
untimely and his claims not credible. Specifically, the IJ noted that Petitioner’s “testimony
about his arrival [was] not convincing at all and [was] very improbable,” A.R. 724, and
believed that Petitioner may have exaggerated the severity of the harm he suffered in
Ethiopia. The BIA affirmed the IJ’s decision in 2004. Petitioner petitioned for review of
the BIA’s decision but did not file a brief or otherwise pursue the claim, resulting in
dismissal of the petition for failure to prosecute pursuant to this court’s Local Rule 45. See
4
Citations to the “A.R.” refer to the Administrative Record filed by the parties in
this case.
3
Ethiopis v. Gonzales, No. 04-2564 (4th Cir. 2005); 4th Cir. R. 45 (dismissals for failure to
prosecute).
In September 2011, Petitioner, who had remained in the United States despite the
issuance of a removal order, applied for a new Ethiopian passport, but the officials at the
Ethiopian embassy in Washington, D.C. refused to issue him one. After learning of his
Eritrean heritage, an embassy official informed Petitioner over the phone that he was “not
considered an Ethiopian and not eligible for an Ethiopian passport.” A.R. 229. Petitioner
then went to the Ethiopian embassy in person, where the officials reiterated that he was
“now considered an Eritrean” and accordingly was “not eligible for an Ethiopian passport.”
Id.Petitioner filed his first motion to reopen his immigration proceedings on December
5, 2011 (“First Motion”). In this First Motion, he argued that the Ethiopian government
discriminatorily denationalized him by refusing to issue him a passport because of his
Eritrean ethnicity. Petitioner requested that the BIA exercise its sua sponte authority to
reopen his removal proceedings. The BIA denied the First Motion, which this court
concluded was not an abuse of discretion. See Ethiopis v. Holder, 509 F. App’x 252 (4th
Cir. 2013). Petitioner also moved for the BIA to reconsider its denial of the First Motion,
but the BIA denied that motion as well.
On May 20, 2018, Petitioner filed a second motion to reopen (“Second Motion”).
This is the motion we consider in the present petition. As he did in the First Motion,
Petitioner claims in his Second Motion that he was discriminatorily denationalized as a
result of the 2011 incident at the Ethiopian embassy. Petitioner also argues that his
4
denationalization constitutes changed circumstances in Ethiopia that allow him to file the
Second Motion, which otherwise would be untimely and number-barred pursuant to 8
C.F.R. § 1003.2(c)(2). Additionally, Petitioner asserts that he was formally recognized as
stateless by the United Nations High Commissioner for Refugees on October 6, 2017. 5 On
February 8, 2019, the BIA rejected Petitioner’s changed circumstances argument and
denied the Second Motion as untimely and number-barred. Petitioner then filed the present
petition for review of the BIA’s denial of the Second Motion.
II.
A non-citizen “may file only one motion to reopen” his immigration proceedings,
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.” 8 C.F.R.
§ 1003.2(c)(2). However, these time and number restrictions do not apply to a motion to
reopen that is “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.” Id.§ 1003.2(c)(3)(ii); see also Lin v. Holder, 771 F.3d 177, 182 (4th Cir. 2014) (explaining
the motion to reopen filing rules set out by 8 C.F.R. § 1003.2(c)).
5
In 2006, the General Assembly of the United Nations empowered the High
Commissioner for Refugees to formally identify stateless persons. See United Nations
High Commissioner for Refugees, Handbook on Protection of Stateless Persons 4 (2014),
https://www.unhcr.org/dach/wpcontent/uploads/sites/27/2017/04/CH-
UNHCR_Handbook-on-Protection-of-Stateless-Persons.pdf (saved as ECF Opinion
Attachment).
5
“We review the BIA’s denial of a motion to reopen for abuse of discretion.” Lin,
771 F.3d at 182. Motions to reopen are “disfavored because every delay works to the
advantage of the deportable alien who wishes merely to remain in the United States.”
Sadhvani v. Holder, 596 F.3d 180, 182 (4th Cir. 2009). For these reasons, a denial of a
motion to reopen is “reviewed with extreme deference,” id., and will only be reversed if it
was “arbitrary, irrational, or contrary to law.” Lin, 771 F.3d at 182 (internal quotation
marks omitted).
III.
A.
In his Second Motion, Petitioner argues that he was discriminatorily denationalized
in 2011 when the officials at the Ethiopian embassy in Washington, D.C. refused to issue
him a passport because of his Eritrean ethnicity. Furthermore, he argues that his
denationalization constitutes changed circumstances arising in Ethiopia that allow him to
file his otherwise untimely and number-barred motion to reopen pursuant to 8 C.F.R.
§ 1003.2(c)(3)(ii). Petitioner claims that he did not make this argument in his First Motion.
But, regardless of whether Petitioner did or did not argue that his discriminatory
denationalization constitutes changed circumstances in his First Motion, 6 it is clear that he
could have, which is the operative question.
6
We note, however, that if in denying Petitioner’s First Motion, the BIA actually
considered and rejected Petitioner’s claim that his discriminatory denationalization
constitutes changed circumstances arising in Ethiopia, the doctrine of collateral estoppel
would bar Petitioner from relitigating that claim in his Second Motion. See Ramsay v.
I.N.S., 14 F.3d 206, 208 (4th Cir. 1994) (applying collateral estoppel to bar a challenge to
6
By the time Petitioner filed his First Motion in December 2011, the officials at the
Ethiopian embassy had already refused to issue him a passport because of his Eritrean
ethnicity, and Petitioner had already concluded that this refusal was an act of
discriminatory denationalization. Indeed, Petitioner argued these points at length in his
First Motion, as well as in his motion for reconsideration of the BIA’s denial of that motion.
See A.R. 200 (arguing in the First Motion that the Ethiopian government’s rejection of his
“passport application because of his Eritrean ethnicity” confirmed that the Ethiopian
government “does not consider him its citizen”); A.R. 159–60 (arguing in his motion to
reconsider that the BIA had “wholly ignored [his] claim that the Ethiopian government
denationalized him as manifested by the denial of [his] passport in September 2011”).
Moreover, establishing changed circumstances in Ethiopia must have -- or at least should
have -- been on Petitioner’s mind at the time of his First Motion. The BIA denied
Petitioner’s First Motion as untimely because he filed it over seven years after the BIA
affirmed the IJ’s denial of his original claims for relief -- well outside of the 90-day filing
window set out in Section 1003.2(c)(2). However, pursuant to Section 1003.2(c)(3)(ii)’s
a deportation order). Whether the BIA previously addressed this argument is a close
question. On the one hand, the BIA denied the First Motion -- which Petitioner labeled as
a “motion to reopen sua sponte based on changed law and changed circumstances,” A.R.
183 (emphasis supplied), and in which Petitioner unequivocally claimed that he was
discriminatorily denationalized -- as untimely because Petitioner had “not shown changed
circumstances or country conditions arising in [] Ethiopia.” Id. at 172. On the other hand,
Petitioner did not specifically argue that his denationalization was the “changed
circumstances” to which the motion’s label referred. Ultimately, we will take Petitioner at
his word that he did not raise this argument in his First Motion. In any event, as explained
herein, even if the Second Motion is free of any collateral estoppel problems, the BIA did
not abuse its discretion in denying it.
7
exceptions to the 90-day filing rule, the First Motion would not have been untimely had
Petitioner successfully argued that his discriminatory denationalization established
changed circumstances. In other words, Petitioner had the necessary facts, as well as a
strong incentive, to make the changed circumstances argument in his First Motion in 2011.
Nonetheless, he waited until 2018 to raise it.
Petitioner contends that he waited until his Second Motion to argue that
discriminatory denationalization constitutes changed circumstances arising in Ethiopia
because he did not have enough evidence to support that claim until 2017, when the United
Nations High Commissioner for Refugees formally recognized his statelessness. See Oral
Argument at 18:54–19:26, Ethiopis v. Barr, No. 19-1237 (4th Cir. Sept. 10, 2020),
https://www.ca4.uscourts.gov/oral-argument/listen-to-oral-arguments. This explanation is
unpersuasive. Petitioner clearly believed that he had plenty of evidence of his statelessness
at the time he filed his First Motion, in which he argued that he had been “stripped of his
Ethiopian citizenship.” A.R. 197. Moreover, the High Commissioner for Refugees’
recognition of Petitioner’s statelessness is irrelevant to the separate question of whether
denationalization constitutes changed circumstances arising in Ethiopia for purposes of
Section 1003.2(c)(3)(ii). That question is one that the court -- not the High Commissioner
for Refugees -- must decide. See Zambrano v. Sessions, 878 F.3d 84, 87 (4th Cir. 2017)
(holding in an asylum case that “the Court has jurisdiction to decide questions of law
concerning the legal definition of a changed circumstance”). Even if the High
Commissioner for Refugees’ recognition of statelessness made us confident that Petitioner
was in fact denationalized, it would not impact our analysis of whether that
8
denationalization constitutes a change in circumstances. Therefore, it does not make sense
for Petitioner to have waited for that evidence before making his changed circumstances
argument.
We are unable to identify any compelling reason as to why Petitioner waited until
his Second Motion -- which he filed six and a half years after his First Motion and 13 and
a half years after the BIA affirmed the IJ’s denial of his claims for relief -- to argue that his
discriminatory denationalization constitutes changed circumstances arising in Ethiopia.
This unnecessary delay is problematic. Indeed, it is fatal to the petition before us.
B.
Petitioner’s choice to make an argument in his Second Motion that “could have been
raised [in his] first motion to reopen” runs afoul of “the policy discouraging piecemeal
attacks on immigration orders.” Gottesman v. I.N.S., 33 F.3d 383, 389 (4th Cir. 1994).
This policy preserves judicial and administrative resources and is conceptually related to
the doctrine of res judicata, under which a party is barred “from relitigating a claim that
was decided or could have been decided in an original suit.” Laurel Sand & Gravel, Inc.
v. Wilson, 519 F.3d 156, 161 (4th Cir. 2008) (emphasis supplied). It also promotes the
“strong public interest in bringing [immigration] litigation to a close as promptly as is
consistent with the interest in giving the adversaries a fair opportunity to develop and
present their respective cases.” I.N.S. v. Abudu, 485 U.S. 94, 107 (1988) (describing why
motions to reopen are disfavored in removal proceedings). Finally, this policy reflects the
fact that courts are uncomfortable with non-citizens filing “last minute challenges to
underlying orders as a sure-fire way to prolong their stay in the United States.” Gottesman,
9
33 F.3d at 389; see also Lemus v. Gonzales, 489 F.3d 399, 401 (1st Cir. 2007) (“Once
removal has been mandated, an alien ought not be allowed to frustrate the removal order
by filing an endless series of motions.”).
Consistent with these principles, we and our sister circuits have disfavored
subsequent motions to reopen that are based on arguments that could have been advanced
in earlier motions to reopen. See, e.g., Gottesman, 33 F.3d at 389 (denying petition for
review of the BIA’s “decision not to terminate [petitioner’s] deportation proceedings while
his second motion to reopen” was pending because the argument in second motion to
reopen “could have been raised [with petitioner’s] first motion to reopen”); Jing v.
Ashcroft, 105 F. App’x 437, 440–41 (3d Cir. 2004) (noting that the “BIA was well within
its discretion in denying the petitioners’ second motion to reopen,” which contained
arguments that “could have been based in their first motion to reopen”); Ajayi v. I.N.S., 62
F.3d 397, at *4 (5th Cir. 1995) (per curiam) (denying petition for review where arguments
made in second motion to reopen “could have and should have been made” earlier).
Accordingly, we conclude it is not an abuse of discretion, but rather a sound exercise
of judgment, for the BIA to deny a second motion to reopen where it is based on an
argument that could have been raised in the first motion to reopen and where there is no
compelling justification for the delay. Denying such a motion preserves judicial and
administrative resources and increases the efficiency of immigration proceedings. Even
more importantly, denying this type of motion does not deprive a petitioner of a fair
opportunity to develop and present his case, because he would have had the chance to do
so in his first motion to reopen. Here, because Petitioner’s Second Motion falls squarely
10
within this category of disfavored motions, we conclude there was no abuse of discretion
in the BIA’s decision to deny it.
IV.
For the reasons set forth herein, the petition for review is
DENIED.
11