Jose Leandro Lainez-Ortiz v. Immigration and Naturalization Service , 96 F.3d 393 ( 1996 )

SCHWARZER, Senior District Judge:

Jose Leandro Lainez-Ortiz petitions for review of the decision of the Board of Immigration Appeals (“BIA”). The BIA dismissed Lainez-Ortiz’s appeal of the Immigration Judge’s ruling finding him deportable and denied his motion to reopen to file an initial application for asylum. Lainez-Ortiz challenges the BIA’s decision on the ground that the denial of his motion to reopen his deportation proceeding to apply for political asylum was an abuse of discretion. We have jurisdiction under 8 U.S.C. § 1105a and deny the petition for review.

BACKGROUND

Petitioner is a 32-year-old citizen of Honduras. He claims that he fled Honduras in fear for his life on July 25, 1990. On September 6, 1990, he entered the United States without inspection. The Immigration and Naturalization Service immediately issued an Order to Show Cause why he should not be deported under Section 241(a)(2) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1251(a)(2). He appeared before the Immigration Judge (“IJ”) on September 12, 1990, and requested time to consult with an attorney. Three weeks later, at his next deportation hearing, he still had not consulted with an attorney. During this second deportation hearing, the IJ explained to petitioner that he had the right to apply for asylum and explicitly asked him whether he had any reason to fear returning to Honduras and whether he was interested in applying for asylum. Petitioner indicated that he had no fear of returning and that he did not wish to file for asylum. The IJ found petitioner to be deportable and ordered him deported to Honduras.

Petitioner appealed the Order of Deportation. Six weeks later, on November 26,1990, while the appeal was pending before the BIA, petitioner filed a motion to reopen the proceedings to apply for asylum and withholding of deportation under sections 208(a) and 243(h) of the INA, 8 U.S.C. §§ 1158(a) and 1253(h). He submitted an affidavit in support of the motion, setting forth the facts supporting his prima facie claim of asylum. Petitioner alleged government persecution in Honduras based upon his political activities and opinions and stated that he feared he would be unable to escape persecution upon returning to Honduras.

On February 7, 1994, the BIA dismissed petitioner’s appeal and denied his motion to reopen. It stated, in relevant part, that “a party seeking to reopen deportation proceedings must state the new facts that the party intends to establish, supported by affidavits or other evidentiary material. 8 C.F.R. §§ 3.2; 3.8_” Petitioner now appeals the denial of his motion to reopen.

DISCUSSION

We review the denial of a motion to reopen for abuse of discretion. INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 724-25, 116 L.Ed.2d 823 (1992); INS v. Abudu, 485 U.S. 94, 105, 108 S.Ct. 904, 912, 99 L.Ed.2d 90 (1988). The BIA’s ruling will not be disturbed unless it acted arbitrarily, irrationally, or contrary to the law. Israel v. INS, 785 F.2d 738, 740 (9th Cir.1986) (citing Sangabi v. INS, 763 F.2d 374, 375 (9th Cir.1985)).

Petitioner claims that the BIA abused its discretion in summarily dismissing his motion to reopen the deportation proceedings to allow him to apply for asylum. He contends that he “reasonably explained” his failure to request asylum before the completion of the proceedings as required by 8 C.F.R. § 208.4 (1991). He also contends that the evidence submitted in support of his asylum claim constitutes “previously unavailable, material evidence” under 8 C.F.R. §§ 3.2, 3.8 (1991) and established a prima facie case for asylum.

The BIA has considerable discretion concerning motions to reopen. Doherty, 502 U.S. at 323, 112 S.Ct. at 724-25. Here, the BIA based its denial of petitioner’s motion to reopen on 8 C.F.R. §§ 3.2 and 3.8 (failure to state new facts). The question before us is whether it abused its discretion or acted contrary to the law. In reaching our decision, we are mindful of the Supreme Court’s admonition that motions to reopen deportation proceedings are disfavored. Id. (citing INS v. Abudu, 485 U.S. at 107-08, 108 S.Ct. at 913-14 (1988)).

The regulations at issue in this case are clear and unambiguous. Section 3.2 states that “motions to reopen ... shall not be granted unless it appears to the Board that evidence sought to be offered ... was not available and could not have been discovered or presented at the former hearing....” 8 C.F.R. § 3.2 (1991) (emphasis added). Section 3.8(a) states that “motions to reopen shall state the new facts to be proved....” 8 C.F.R. § 3.8(a)(1991). In addition, section 208.4(b)(3) provides that where, as here, an initial claim for asylum is made after completion of deportation proceedings, an application “shall be filed ... in conjunction with a motion to ... reopen pursuant to 8 C.F.R. 8.2 and 8.8 where applicable.” 8 C.F.R. § 208.4(b)(3) (1991) (emphasis added). Section 208.4(b)(4) adds the further requirement that motions to reopen for an asylum claim “must reasonably explain the failure to request asylum prior to completion of the ... deportation proceedings.” 8 C.F.R. § 208.4(b)(4) (1991).

Our dissenting colleague argues that a petitioner who moves to reopen in order to press an initial asylum claim need only offer a reasonable explanation for his failure to request asylum in a timely fashion (thus satisfying § 208.4(b)(4)) and need not also offer new facts (as required by § 3.2). He reasons that offering new facts is always a reasonable explanation for failing to raise an asylum claim earlier. Requiring a petitioner to satisfy § 3.2 therefore would make § 208.4(b)(4) a nullity. He suggests we avoid this result by construing the regulations to drop the new facts requirement for motions to reopen to raise initial asylum claims.

We are not at liberty to perform such major surgery on the BIA’s regulations. Although there may be a degree of overlap between the “new facts” requirement and the “reasonable explanation” requirement, one can conceive of cases where a petitioner, for reasons best known to him, holds back evidence available at the deportation hearing for later use if necessary. The existence of some overlap, however, does not warrant reading § 208.4, the asylum regulation, in a way that makes the evidentiary requirements of § 3.2 entirely inapplicable to motions to reopen for initial asylum claims.

The Supreme Court has not directly addressed the interpretive problem posed by the dissent. Nevertheless, in Abudu, when faced with a BIA decision denying a motion to reopen for a newly-raised asylum claim, it apparently assumed that a motion to reopen in such a ease must satisfy the requirements of both sections:

The BIA’s regulation that provides for reopening of deportation proceedings, 8 C.F.R. § 3.2 (1987), applies to all motions to reopen, regardless of the underlying substantive basis of the alien’s claim.

485 U.S. at 105-06 n. 10, 108 S.Ct. at 912-13 n. 10 (emphasis added).

Furthermore, the Court stated that the “BIA may deny a motion to reopen ... [because] the movant has not introduced previously unavailable material evidence, 8 C.F.R. § 3.2 (1987) [now § 208.4], or, in an asylum application case, that the movant has not reasonably explained his failure to apply for asylum initially, 8 C.F.R. § 208.11 (1987).” Id. at 104-05,108 S.Ct. at 912. The conjunction “or” may imply that the only ground for denial of a motion to reopen to make an initial asylum claim would be a movant’s failure to satisfy the reasonable explanation requirement. In light of the Court’s statement of the broad applicability of § 3.2, however, the better reading of Abudu is that the new facts and the reasonable explanation requirements both apply to such motions and provide alternative grounds for denial. See also, id. at 108, 108 S.Ct. at 914 (indicating circumstances exist in which the BIA must inquire both “whether the alien has reasonably explained his failure to apply for asylum initially and [whether he] has indeed offered previously unavailable material evidence,” (emphasis added, footnote omitted)). The language of Abudu hardly supports an interpretation, such as our dissenting colleague’s, which would effectively read § 3.2 out of asylum cases.

Indeed, in Doherty, 502 U.S. 314, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992), the Court reiterated the reasoning that it had adopted in Abudu. In discussing an alien’s effort to reopen an asylum claim he had previously withdrawn, the Court applied Abudu to the case and held that:

[T]he Attorney General did not abuse his discretion in denying reopening either on the basis that respondent failed to adduce new material evidence or on the basis that respondent failed to satisfactorily explain his previous withdrawal of these claims.

Id. (emphasis added).

While neither this Circuit nor any other has squarely addressed the interpretation issue that the dissent raises, see pp. 12156-12158 infra, the courts have consistently assumed that motions to reopen in asylum cases are subject to the dual requirements of §§ 3.2 and 208.4. See, e.g., Abudu v. INS, 802 F.2d 1096, 1101-02 (9th Cir.1986), rev’d on other grounds, 485 U.S. 94, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988); Samimi v. INS, 714 F.2d 992, 994 (9th Cir.1983); M.A. A26851062 v. INS, 899 F.2d 304, 308-09 (4th Cir.1990) (en banc); Ogbemudia v. INS, 988 F.2d 595, 600 (5th Cir.1993); Bahramnia v. INS, 782 F.2d 1243, 1245 (5th Cir.), cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 352 (1986); Sanchez v. INS, 707 F.2d 1523, 1526-27 (D.C.Cir.1983).

Because we find that the BIA could lawfully base its denial of petitioner’s motion on § 3.2, we must address petitioner’s claim that, in applying § 3.2, the BIA abused its discretion. The BIA has “broad ... discretion ... to decide that the material adduced ... could have foreseen or anticipated at the time of the earlier proceeding.” Doherty, 502 U.S. at 326, 112 S.Ct. at 726. In the instant case, petitioner’s motion to reopen did not claim to offer evidence previously unavailable; it only explained his previous failures to claim asylum and described his activities in Honduras upon which he justifies his fear of prosecution. Accordingly, there was no basis upon which the BIA could have found that any new facts were being offered. Its denial of the motion was not an abuse of discretion.

PETITION DENIED.