Asere, Samuel K. v. Gonzales, Alberto ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2215
SAMUEL KWASI ASERE,
Petitioner,
v.
ALBERTO R. GONZALES,
United States Attorney General,
Respondent.
____________
On Petition for Review of an Order of
The Board of Immigration Appeals.
No. A78-293-009
____________
ARGUED JANUARY 4, 2006—DECIDED MARCH 2, 2006
____________
Before CUDAHY, RIPPLE, and KANNE, Circuit Judges.
CUDAHY, Circuit Judge. This is a disappointing case in
which the efforts of this Court to go beneath the surface
of things have been frustrated. Petitioner Samuel Kwasi
Asere, a native and citizen of Ghana, has appealed a
Board of Immigration Appeals (BIA) decision denying
him asylum and ordering him returned to Ghana. Asere fled
Ghana after rejecting his family’s plea to be a priest of their
fetish religion and becoming an adherent of Christianity.
Asere was originally granted asylum by an immigration
judge (IJ), and this decision was upheld by the BIA. How-
ever, after the government filed a motion to reconsider, the
2 No. 05-2215
BIA reversed itself and denied Asere asylum. Asere now
appeals.
I. Background
Samuel Kwasi Asere is a citizen and national of Ghana.
He was born in 1974 and was raised in the western region
of Ghana. He lived in the town of Suraano and was a farmer
before leaving Ghana. His family members worship a fetish
called Atiamframa. His uncle, Nana Kwaku Dua, was a
fetish priest until he died on May 5, 2000. Asere was a
member of this religion until he began practicing Christian-
ity in 1990. In 1994, he was baptized by a pastor in the
Evangelical Trinity Church, located in a neighboring
village. After he was baptized, Asere began traveling to the
neighboring village to assist the Pastor by conducting
prayer meetings at Sunday School with children. Asere
wanted to become a Pastor in the Church.
After Asere’s uncle, the fetish priest, died in 2000, the
elders of Asere’s family named Asere the new fetish priest
since he was the only son in the family. However, Asere
refused to accept this role because of his Christian beliefs.
Asere testified that the elders of his family threatened to
kill him because he refused to become the new priest.
Asere fled his village in June 2000 and first went to
Debesu, a neighboring village. He then went to the Ivory
Coast and lived there for one month before arriving in
France. He then moved to Holland because he did not speak
French. He left Holland and attempted to enter the United
States at O’Hare International Airport on November 18,
2000, under the visa waiver program. He initially sought
entry using a fraudulent British passport. The former
Immigration and Naturalization Service (INS) placed Asere
in “asylum only” proceedings and issued a Notice of Referral
to an IJ after Asere requested asylum. He requested
asylum, withholding of removal and relief under the
No. 05-2215 3
Convention Against Torture Act (CAT) based on his claim
that he would be persecuted by his family if he returned to
Ghana because he no longer practiced their traditional
religion.
During his initial asylum hearing, Asere testified that
he feared returning to his country because he believed
the elders of the fetish religion would kill him. He testi-
fied that he would not be safe anywhere in Ghana be-
cause he would preach the word of God and spread the
Christian message, thus enabling his family members to
find him.
At Asere’s asylum hearing, his cousin, Dominic Agyekum,
testified on Asere’s behalf. Agyekum is a lawful permanent
resident of the United States. He testified that the elders of
the fetish would indeed kill Asere because of his refusal to
serve as the fetish priest. Additionally, he testified that the
local police in Ghana would not protect Asere because they
would treat this issue as a family matter and refer it to the
elders of the family to resolve. Affidavits from Asere’s father
and uncle, active members of the fetish religion, indicate
that they believe Asere’s life would be in danger if he
returned to Ghana.
On February 19, 2003, following the conclusion of the
merits hearing, the IJ granted Asere’s application for
asylum. The IJ issued a written decision as well. In the
written decision, the IJ found Asere credible and noted that
based upon Asere’s testimony and other documentary
evidence, he had a “well-founded fear of present or future
persecution” in Ghana.
The government filed a timely appeal with the BIA. On
May 26th, 2004, the BIA summarily affirmed without
opinion the IJ’s decision to grant Asere asylum. On June 15,
2004, the government filed a motion to reconsider the BIA’s
affirmance of the IJ’s decision to grant asylum. On January
25, 2005, the BIA granted the government’s motion to
4 No. 05-2215
reconsider and, reversing itself, sustained the underlying
appeal. The BIA held that Asere had “failed to meet the
burden of establishing that it would not be reasonable for
him to relocate within his native country, as the persecution
he fears is not from the government or a government-
sponsored entity.” It vacated the IJ’s decision and ordered
Asere removed from the United States to Ghana. Asere did
not initially file a petition for review of this order.
On February 18, 2005, Asere filed a motion with the BIA
to reconsider the January order. On March 31, 2005, the
BIA denied Asere’s motion to reconsider, finding that
he failed to demonstrate that reconsideration was war-
ranted based on legal or factual error in the previous de-
cision. Asere then appealed to this Court on May 2, 2005.
II. Discussion
We cannot reach the merits of this case unless we
have jurisdiction. The government argues that we do not
have jurisdiction to review the BIA’s January 25, 2005
decision to grant the government’s motion to reconsider,
and, reversing itself, to sustain the underlying appeal
denying Asere asylum because Asere did not file an appeal
from the January decision within thirty days. Further, the
government argues that Asere waived review of the BIA’s
March 31, 2005 decision denying his February motion to
reconsider because he did not address in either of his briefs
how the BIA in March abused its discretion in denying his
motion.
A petition for review of a final order of removal “must
be filed not later than 30 days after the date of the final
order of removal.” 8 U.S.C. § 1252(b)(1). “As the period
is jurisdictional no excuse is availing.” Ajose v. Gonzales,
408 F.3d 393, 395 (7th Cir. 2005). See Sankarapillai v.
Ashcroft, 330 F.3d 1004, 1006 (7th Cir. 2003) (the 30-day
deadline is jurisdictional). The BIA issued a final order
No. 05-2215 5
of removal on January 25, 2005. Thirty days from January
25, 2005 was February 24, 2005. Asere filed his petition
for review on May 2, 2005. Asere wrote in his brief that
he sought review of the “BIA decision of January 25, 2005
reversing the grant of asylum by the Immigration Judge.”
However, his petition was ninety-seven days late. We
have consistently dismissed petitions for review when
they have been late (sometimes even just one day late). See,
e.g., Sankarapillai, 330 F.3d at 1006 (dismissing a petition
that was due by April 17 but was not received by the Court
until April 18); Simtion v. Ashcroft, 393 F.3d 733, 734 (7th
Cir. 2004) (dismissing an untimely petition).
Asere’s lawyer made no attempt in his initial brief or
his reply brief to explain this tardiness. His only response is
that he had to wait for the BIA to reach its decision on his
motion to reconsider, and the BIA did not do so until March
31, 2005. He argues that because the BIA did not issue its
decision on his petition to reconsider until March 31, 2005,
the instant petition was filed within the 30-day filing
deadline. However, the case law could not be clearer on this
issue; a motion to reconsider does not toll the initial 30-day
filing deadline for seeking judicial review of the underlying
removal order. The finality of a removal order “is not
affected by the subsequent filing of a motion to reconsider.”
Stone v. INS, 514 U.S. 386, 405 (1995). See Ahmed v.
Ashcroft, 388 F.3d 247 (7th Cir. 2004) (filing a motion to
reconsider does not toll the time for seeking judicial review
of the underlying order).
Asere’s appeal was, of course, filed in time for us to
consider the BIA’s decision to deny Asere’s motion to
reconsider, which was issued on March 31, 2005. However,
Asere’s brief focuses entirely on the BIA’s January 25th
decision and does not once mention the March 31st order in
the discussion section of the brief. The two headings for the
discussion section of the brief are: “1. The BIA decision of
January 25, 2005 reversing the grant of asylum by the
6 No. 05-2215
Immigration Judge was erroneous”; and “2. The Immigra-
tion Judge’s grant of asylum to petitioner was the right
decision.” The March decision is mentioned in only one
sentence in the “facts” section. Thus, we must conclude that
Asere has waived his right to seek review of the March 31,
2005 BIA decision. See Brucaj v. Ashcroft, 381 F.3d 602, 611
n.7 (7th Cir. 2004) (Petitioner “did not make any argument
in her opening brief regarding her CAT claim. Thus she has
waived that claim.”); Luellen v. City of East Chicago, 350
F.3d 604, 612 n.4 (7th Cir. 2003) (Petitioner “failed to raise
this argument in his opening brief, it is therefore waived.”);
Ajayi v. Aramark Business Services, 336 F.3d 520, 529 (7th
Cir. 2003) (“It is not enough for [plaintiff] merely to refer
generally to these actions in her statement of facts; if she
intends to challenge this aspect of the district court’s ruling,
she must identify the legal issue, raise it in the argument
section of her brief, and support her argument with perti-
nent authority.”).
We therefore conclude that we cannot review either of the
decisions adverse to Asere. Ironically, even if we had
jurisdiction to review the BIA’s January 25, 2005 decision
to reconsider, we would have difficulty doing so. The BIA’s
January 25 decision left much to be desired. After overturn-
ing not only the IJ’s opinion, but also its own initial opinion,
the BIA gave only a brief explanation of its new decision to
deny asylum. It did little to explain how its reasoning
changed from its first decision, which was an affirmance
without opinion, to its second. We expect more from the BIA
in these abrupt changes in direction without adequate
explanation.
Though this case is disappointing, all hope may not
be lost for Asere. Ordinarily, a motion to reopen must be
filed no later than 90 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). For Asere,
that time has lapsed. However, we have held that the
No. 05-2215 7
deadlines for motions to reopen are not jurisdictional, and
are therefore subject to equitable tolling. Pervaiz v. Gonza-
les, 405 F.3d 488, 490 (7th Cir. 2005). We have also sug-
gested that ineffective assistance of counsel is a possible
basis for tolling the reopening deadline. See id.; Mahmood
v. Gonzalez, 427 F.3d 248, 251 (3d Cir. 2005). As is all too
evident, the failure to file a timely appeal of the BIA’s
January 25, 2005 decision was fatal. Based on this failure,
Asere might have sufficient grounds to file a new motion to
reopen to challenge the BIA’s decision.
Petition for review dismissed for lack of jurisdiction.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-2-06