Amicy v. Ashcroft

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1149
HERMASE AMICY,
Petitioner,
v.
ALBERTO GONZALES, Attorney General,
Respondent.*
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Lipez, and Howard, Circuit Judges.
Roxana V. Muro and FitzGerald & Company, LLC for petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Douglas E. Ginsburg, Senior Litigation Counsel, and Jonathan
Potter, Attorney, Office of Immigration Litigation, Civil Division,
on brief for respondent.
June 3, 2005
*
Alberto Gonzales was sworn in as United States Attorney
General on February 3, 2005. We have therefore substituted
Attorney General Gonzales for John Ashcroft as the respondent. See
Fed. R. Civ. P. 25(d)(1); Fed. R. App. P. 43(c)(2).
Per curiam. Hermase Amicy petitions for review of a
final order of the Board of Immigration Appeals (BIA) denying her
motion to reopen her immigration proceedings. We deny the
petition.
Amicy, a native and citizen of Haiti, entered the United
States illegally in 1991. Nine years later, the Immigration and
Naturalization Service (INS)1 initiated removal proceedings under
8 U.S.C. § 1182(a)(6)(A)(i) (governing aliens present in the United
States without admission or parole). Conceding removability, Amicy
applied for asylum and withholding of removal based on the
persecution that she allegedly had suffered in Haiti as a result of
her participation in a pro-democracy “political religious” group.
Amicy claimed that, in 1991, the “Ton Ton Macoutes,” a military
group affiliated with the deposed regime of Jean-Claude Duvalier,
arrested her because of her political activities. She testified
that during her one-month detainment, she was interrogated, beaten
and raped.2 Her asylum application also stated that her brother
was killed in Haiti in 1999.
The immigration judge (IJ) denied Amicy's asylum claim as
time-barred. Citing inconsistencies in Amicy's testimony and her
inability to remember events critical to her claim, the IJ also
1
In March 2003 the relevant functions of the INS were
reorganized and transferred into the new Department of Homeland
Security.
2
Amicy did not mention the rape in her asylum application.
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found Amicy lacked credibility and denied her withholding of
removal application. An order of removal was issued on January 31,
2002. Amicy's appeal to the BIA conceded that her asylum claim was
time-barred, but argued that she was eligible for withholding of
removal. On June 10, 2003, the BIA adopted the IJ's decision and
dismissed Amicy's appeal.
Three months after the BIA's final order of removal,
Amicy moved the BIA to reopen her immigration proceedings. She
claimed that her inability to remember the events surrounding her
persecution was the result of significant psychological trauma. In
support of her motion, she submitted a psychiatric evaluation that
stated that Amicy is impaired by “difficulties in spatial
organization” and “distractibility,” and that these symptoms are
“consistent with a diagnosis of Major Depressive Disorder.” She
also submitted a picture allegedly showing her son with gun shot
wounds. On December 29, 2003, the BIA denied Amicy's motion to
reopen, finding that the new evidence did not adequately rebut the
IJ's adverse credibility determination and that Amicy had not
established that the new evidence was previously unavailable.
The BIA may grant a motion to reopen when the petitioner
establishes (1) “a prima facie case for the underlying substantive
relief sought,” and (2) that the motion introduces “previously
unavailable, material evidence.” Fesseha v. Ashcroft, 333 F.3d 13,
20 (1st Cir. 2003) (quoting INS v. Abudu, 485 U.S. 94, 107 (1988));
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see also 8 C.F.R. § 1003.2(c)(1). Even when the petitioner
satisfies both of these requirements, however, the BIA retains the
discretion to grant or deny the motion. See Fesseha, 333 F.3d at
20; 8 C.F.R. § 1003.2(a). Thus, we will only reverse the BIA for
an abuse of discretion. See Fesseha, 333 F.3d at 20.
Amicy has made no showing that her newly proffered
evidence was unavailable and could not have been presented to the
IJ at the removal hearing. Cf. Elboukili v. INS, 125 F.3d 861,
1997 WL 616222, at *2 (10th Cir. 1997) (unpublished opinion)
(denying petitioner's request to supplement the record with a
psychological evaluation because “this means of demonstrating
petitioner's mental state has always been available to
petitioner”). She therefore has failed to establish the second
requirement for reopening an immigration proceeding. Because the
BIA was within its discretion to deny Amicy's motion to reopen on
that basis alone, we need not consider whether Amicy has
established a prima facie claim for relief.3
3
We also decline to consider Amicy's contention that the BIA
should have granted her relief because the IJ failed to provide a
detailed explanation in support of his adverse credibility
determination. All final orders of the BIA must be challenged in
this court within 30 days. 8 U.S.C. § 1252(b)(1). The final order
denying Amicy's underlying claims for asylum and withholding of
removal was issued by the BIA on June 10, 2003. Amicy's motion to
reopen did not enlarge the filing period for judicial review of her
underlying claims, nor did her petition to review the BIA's
December 29, 2003 order (denying her motion to reopen) preserve her
challenge to the underlying removal order. See Ven v. Ashcroft,
386 F.3d 357, 359-60 (1st Cir. 2004). Because Amicy did not timely
petition for review of the BIA's June 10, 2003 order, we lack
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Accordingly, the petition for review is denied.
jurisdiction to consider the underlying denial. See Zhang v. INS,
348 F.3d 289, 292 (1st Cir. 2003).
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