Bounty Lue Yang v. Alberto Gonzales ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-3010
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Bounty Lue Yang, *
*
Petitioner, *
* Petition for Review of a Final
v. * Decision of the Board
* of Immigration Appeals.
Michael B. Mukasey, Attorney General *
of the United States of America,1 *
*
Respondent. *
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Submitted: September 27, 2007
Filed: December 21, 2007
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Before LOKEN, Chief Judge, WOLLMAN and RILEY, Circuit Judges.
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RILEY, Circuit Judge.
Bounty Lue Yang (Yang), a native and citizen of Laos, petitions this court for
review of the Board of Immigration Appeals’s (BIA) denial of his motion to
reconsider the BIA’s prior denial of Yang’s motion to reopen removal proceedings in
relation to his application for asylum, withholding of removal and protection under
1
Michael B. Mukasey has been appointed to serve as Attorney General of the
United States, and is substituted as respondent pursuant to Federal Rule of Appellate
Procedure 43(c)(2).
the Convention Against Torture (CAT). We dismiss in part and deny in part the
petition for review.
I. BACKGROUND
Yang testified he was born in Laos. In Laos, Yang married a Laotian woman
and had several children, all of whom remain in Laos. Yang testified he came by
himself to the United States through Los Angeles, California, in about October 2000.
Yang entered as a non-immigrant visitor with authorization to remain in this country
until March 2001, but he remained beyond that date without authorization.2
In March 2001, Yang married Phoua Thao (Thao), a United States citizen.
Thao filed a visa petition for an alien relative (Form I-130) to begin the process of
attaining legal status for Yang, but the visa petition was denied because Yang failed
to disclose his prior marriage. Yang also filed an application for adjustment of status,
but that application was denied as well.3 With respect to Yang’s application for
adjustment of status, Thao submitted a letter declaring that: (1) Yang left Thao after
the application was filed; (2) after Thao married Yang, she learned Yang had a wife
and children in Laos; and (3) Thao withdrew her support on Yang’s behalf. In
October 2002, Yang’s marriage to Thao ended.4
2
In obtaining his non-immigrant visa, Yang informed the American Embassy
he was married.
3
Yang apparently did not receive notice of the denial of this application until
June 2003.
4
Regarding the dissolution of his marriage to Thao, Yang testified “she did not
love [him], [] did not allow [him] to go to school. She did not allow [him] to go to
work, learn how to drive and hid[] all [his] documentation and she torture[d] [him]
and when she [took] [him] to visit [his] relative, she left [him] there.”
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In April 2003, Yang married Samantha Xiong (Xiong), another United States
citizen. In May 2003, the Department of Homeland Security (DHS) commenced
removal proceedings against Yang. In July 2003, Xiong filed a visa petition for an
immediate alien relative on Yang’s behalf.
Meanwhile, removal proceedings against Yang continued and, on September
10, 2003, at a hearing before an Immigration Judge (IJ), Yang conceded removability
but sought asylum, withholding of removal, protection under the CAT, and voluntary
departure. On March 7, 2005, the IJ, finding Yang’s testimony “very contradictory,”
issued an oral decision denying all of Yang’s claims for relief, but granted Yang sixty
days for voluntary departure. Yang appealed to the BIA. On February 6, 2006, the
BIA affirmed the IJ’s decision in all respects and dismissed Yang’s appeal. In doing
so, the BIA noted that “while the respondent’s application for relief indicates that he
was a member of a guerilla resistance force [], the respondent’s testimony included
no reference to his involvement with this group.” Yang never sought review of the
BIA’s decision.
On April 3, 2006, Yang filed a motion to reopen, stating he would be applying
for adjustment of status based upon his marriage to a United States citizen. On April
10, 2006, the DHS issued a notice of intent to deny the visa petition previously filed
by Xiong on Yang’s behalf. The notice indicated the visa petition contained unofficial
documentation regarding a marriage dissolution between Yang and his Laotian wife.
The notice made particular reference to a comment Xiong made during a followup
interview, when she stated she believed Yang was still married to his Laotian wife.
The notice specifically stated, “Yang never obtained a legal divorce from his first
spouse.” On May 9, 2006, the BIA denied Yang’s motion to reopen because Yang
failed to provide an application for adjustment of status or sufficient
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evidence of a bonafide marriage.5 Yang did not seek judicial review of the BIA’s May
9, 2006, decision.
On May 31, 2006, Yang filed a motion to reconsider the BIA’s May 9, 2006,
denial of his motion to reopen. Because Yang submitted new evidence in support of
this motion—including an adjustment of status application, several reference letters,
a house deed, as well as property tax, financial, and utility records—the BIA also
construed Yang’s motion as a new motion to reopen. On July 11, 2006, finding no
legal or factual defects in its previous decision, the BIA denied Yang’s motion to
reconsider. Also deeming Yang’s submission as a motion to reopen because Yang
presented new evidence, the BIA further denied Yang’s motion because a petitioner
is permitted only one motion to reopen (with certain exceptions not relevant to this
appeal). On August 8, 2006, arguing the BIA erred in denying his motion to
reconsider, Yang petitioned for review.
II. DISCUSSION
To the extent Yang’s argument attempts to persuade us the BIA’s May 9, 2006,
denial of his first motion to reopen is in error, we lack jurisdiction to review that
denial because Yang did not file a timely petition for review of that order. Yang’s
appeal seeking judicial review was required to be filed within 30 days of the BIA’s
May 9, 2006, decision. See 8 U.S.C. § 1252(b)(1); De Jimenez v. Ashcroft, 370 F.3d
783, 788 (8th Cir. 2004) (concluding there was no jurisdiction to review a BIA’s
denial of a motion to reopen where petitioner failed to appeal within thirty days); see
also Nava Mier Y Teran v. Gonzales, 168 F.App’x 868, 869 (10th Cir. 2006)
(concluding an appeal of an order by the BIA denying a motion to reopen was a final
order that had to be appealed within 30 days); Bronisz v. Ashcroft, 378 F.3d 632, 636
5
By the time the BIA rendered its decision, in an effort to establish a bonafide
marriage, Xiong had already withdrawn the July 2003 visa petition filed on behalf of
Yang and filed a second relative immigrant visa petition on Yang’s behalf.
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(7th Cir. 2004) (stating “the denial of a motion to reopen is a final order independently
subject to review like any other final order of deportation or removal”); Zhang v. INS,
348 F.3d 289, 292 (1st Cir. 2003) (relating, “all final BIA orders must be appealed to
this court within thirty days” (citing 8 U.S.C. § 1252(b)(1)). Yang did not file an
appeal until August 8, 2006. Thus, our jurisdiction is limited to review of the BIA
order denying Yang’s motion to reconsider, a motion which the BIA also construed
as a motion to reopen because Yang submitted additional evidence.6 We review for
abuse of discretion. See Boudaguian v. Ashcroft, 376 F.3d 825, 827 (8th Cir. 2004).
A motion asking the BIA to reconsider an adverse decision “shall specify the
errors of law or fact in the previous order and shall be supported by pertinent
authority.” 8 U.S.C. § 1229a(c)(6)(C); see Boudaguian, 376 F.3d at 827-28. “In
reviewing the denial of a motion to reconsider, ‘we will find an abuse of discretion if
the denial was made without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis (such as race).’” Boudaguian,
376 F.3d at 828 (quoting Zhang, 348 F.3d at 293).
In his motion to reconsider, Yang did not identify what errors of fact or law, if
any, the BIA made in its decision denying Yang’s petition to reopen. Yang only
submitted additional documentation attempting to prove a bonafide marriage. The
BIA’s reason for denying Yang’s motion to reconsider rests on the basis that Yang
failed to comply with the statutory standard required for a motion to reconsider. The
BIA did not abuse its discretion in denying Yang’s motion to reconsider.
6
We note that, although Yang does not challenge the BIA’s initial order of
February 6, 2006, affirming the IJ, we would also lack jurisdiction to review that order
because Yang did not file a timely petition for review. 8 U.S.C. § 1252(b)(1); see also
Boudaguian v. Ashcroft, 376 F.3d 825, 827 (8th Cir. 2004).
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The BIA also construed Yang’s motion to reconsider as a motion to reopen
because Yang submitted new documentation attempting to establish a bonafide
marriage with a United States citizen. “Motions to reopen are disfavored, especially
in removal proceedings.” Boudaguian, 376 F.3d at 828. If a motion to reopen is filed,
the motion “shall 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 U.S.C. § 1229a(c)(7)(B). There is, however, a limit in the number of motions to
reopen that may be filed. “An alien may file one motion to reopen proceedings,” with
certain exceptions not relevant here. See 8 U.S.C. § 1229a(7)(A). When considering
Yang’s motion as a motion to reopen, the BIA correctly stated Yang’s motion was
numerically barred because the motion constituted Yang’s second motion to reopen.7
III. CONCLUSION
Based on the foregoing, Yang’s petition for review is (1) dismissed for lack of
jurisdiction to the extent Yang seeks review of the BIA’s initial order and the BIA’s
May 9, 2006, order denying Yang’s first motion to reopen; and (2) denied to the
extent Yang seeks review of the BIA’s order denying Yang’s motion to reconsider and
second motion to reopen.
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7
We agree with the government that whether a motion to reopen/reconsider tolls
a voluntary departure period is now a moot issue because: (1) the BIA decided Yang’s
motion on the merits, (2) the issue of whether voluntary departure was tolled during
the pendency of Yang’s motion was not relevant to the BIA’s decision, and (3) the
government does not contend Yang overstayed his voluntary departure period.
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