Balogun, Yetunde v. Gonzales, Alberto

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 23, 2006*
Decided March 23, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-1686
YETUNDE BALOGUN, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals
v. No. A77-648-768
ALBERTO R. GONZALES,
Respondent.
ORDER
Nigerian citizen Yetunde Balogun seeks review of the Board of Immigration
Appeals’ (BIA) decision denying her motion to reopen removal proceedings. Because
we believe that the BIA did not abuse its discretion in deeming Balogun’s motion
untimely, we deny her petition.
In December 1999, Balogun attempted to enter the United States without a
valid entry document, was placed in custody of the Immigration and Naturalization
Service, and was charged with removal. She conceded removability, but applied for
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-1686 Page 2
asylum, claiming a fear of female genital mutilation if she were to return to Nigeria.
In June 2001, the immigration judge denied her application for asylum and ordered
removal; the BIA summarily affirmed that decision in December 2002. Two months
later, in February 2003, Balogun married a United States citizen; a few months
later she gave birth to their first child. In May 2003, Balogun’s husband filed an I-
130 immigrant visa petition on Balogun’s behalf.
Balogun then waited 19 months and, in December 2004, moved to reopen the
removal proceedings so that she could seek adjustment of status based on her
marriage. To file a motion to reopen, however, Balogun had only 90 days from the
date of the final administration decision, see 8 C.F.R. § 1003.2 (c)(3), which here was
December 2002. The BIA therefore denied her motion as untimely, adding that it
found no exception to the timeliness bar.
We review a BIA’s denial of a motion to reopen a case for abuse of discretion.
Singh v. Gonzales, 404 F.3d 1024, 1027 (7th Cir. 2005). Exceptions to the 90-day
filing rule may be made only based on “changed circumstances arising in the
country of nationality,” and then only if “such evidence is material and was not
available and could not have been discovered or presented at the previous hearing.”
8 C.F.R. § 1003.2(c)(3)(ii); Selimi v. Ashcroft, 360 F.3d 736, 739 (7th Cir. 2004).
Balogun first argues that her untimeliness should be excused because of
“pressing personal circumstances,” including her marriage, pregnancy, and birth of
her child. But Balogun’s marriage and the subsequent birth of her child are
changes in personal circumstances, not conditions in Nigeria, and therefore do not
trigger an exception to the 90-day filing deadline. See Selimi, 360 F.3d at 739.
Furthermore, to the extent Balogun argues that the BIA should have reopened her
case sua sponte in the “interest of justice,” we note that when the BIA declines to
reopen a case sua sponte, that decision is discretionary and unreviewable. Pilch v.
Ashcroft, 353 F.3d 585, 586 (7th Cir. 2003).
Balogun next argues that the 90-day filing deadline should be equitably
tolled because she was “ignoran[t] of the procedural niceties of immigration law”
and did not know to seek reopening of her asylum claim until two years after her
husband had filed an immigrant visa on her behalf. As the government points out,
however, Balogun failed to explicitly present this issue to the BIA and thus failed
to exhaust all administrative remedies as required by 8 U.S.C. § 1105a(c). Awad v.
Ashcroft, 328 F.3d 336, 340 (7th Cir. 2003).
Finally, Balogun argues that the Board improperly denied the motion to
reopen because she has proof of her bona fide marriage (i.e. children, joint bank
accounts and insurance policies), and thus has established prima facie eligibility for
adjustment of status to permanent resident. She acknowledges that her motion
No. 05-1686 Page 3
was filed well outside the 90-day window, but counters that it was impossible for
her to file a timely motion to reopen because her request for reopening stemmed
from her marriage that did not occur until one month before the expiration of the 90
days.
Under the regulation, the Board “has discretion to deny a motion to reopen
even if the party moving has made out a prima facie case for relief.” 8 C.F.R. §
1003.2(a). One of the requirements that the Board has set forth in evaluating a
motion to reopen to adjust status based on marriage is that the motion be timely
filed. See In re Valarde-Pacheco, 23 I. & N. Dec. 253, 256 (BIA 2002), quoted in
Ssali v. Gonzales, 424 F.3d 556, 565 (7th Cir. 2005). Even though Balogun married
in February 2003, shortly before the 90-day deadline to file a motion to reopen, she
did not seek reopening until 19 months later. Given this untimely filing, we cannot
say that the BIA abused its discretion by denying her motion to reopen regardless of
whether she has established prima facie eligibility for adjustment of status.
Roberts v. Gonzales, 422 F.3d 33, 36 (1st Cir. 2005) (denying petition for review of
untimely motion to reopen despite petitioner’s bona fide marriage to United States
citizen; petitioner among other things waited nearly five years after deadline before
filing motion to reopen).
The petition is DENIED.