Gyamfi v. Whitaker

• Citation: 913 F.3d 168
• Decision Date: 10 January 2019
• Docket Number: No. 18-1093,18-1093
• Parties: Amma Adu GYAMFI, Petitioner, v. Matthew G. WHITAKER, Acting Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

913 F.3d 168

Amma Adu GYAMFI, Petitioner,

v.Matthew G. WHITAKER, Acting Attorney General,^* Respondent.

No. 18-1093

United States Court of Appeals, First Circuit.

January 10, 2019

Saher Joseph Macarius, Audrey Botros, and Law Offices of Saher Joseph Macarius LLC, Framingham, MA, on brief for petitioner.

Chad A. Readler, Acting Assistant Attorney General, Civil Division, M. Jocelyn Lopez Wright, Senior Litigation Counsel, Office of Immigration Litigation, and Anna Juarez, Trial Attorney, Office of Immigration Litigation, on brief for respondent.

Before Thompson, Kayatta, and Barron, Circuit Judges.

THOMPSON, Circuit Judge.

Petitioner Amma Adu Gyamfi ("Gyamfi") challenges the Board of Immigration Appeals's ("BIA") denial of her motion to reopen and its decision not to exercise its sua sponte authority to reopen her case and grant her request for an adjustment of status. For the reasons we detail below, we deny and dismiss Gyamfi's petition.

BACKGROUND

In March of 2004, Gyamfi, a native of Ghana and resident of Italy from 1992 until 2004, arrived in the U.S. on a nonimmigrant B-2 visa that granted her a six-month stay here. Gyamfi didn't leave after her permissible time here expired, and in November 2007, she married a U.S. citizen, Mark Parrish. That following April, Parrish filed an I-130 petition¹ to get Gyamfi green-card status as the spouse of a U.S. citizen, but when the Department of Homeland Security ("DHS") issued a notice of intent to deny the petition (because the newlyweds hadn't demonstrated the legitimacy of their marriage), Parrish wound up admitting in a 2009 DHS interview that he had made the petition as "a favor" to Gyamfi. Consequently, he withdrew the petition, and DHS denied Gyamfi's application for adjustment of status in April 2009.

A month later, DHS initiated removal proceedings against Gyamfi: she was charged with removability as an alien who remained in the U.S. for a time longer than permitted after being admitted as a nonimmigrant visitor ( 8 U.S.C. § 1227(a)(1)(B) ).² Over the course of a couple of years (2009-2010) and a few hearings before an immigration judge ("IJ"), Gyamfi would first pursue a new I-130 petition, then withdraw it, and in the end, seek asylum protection.³

Unpersuaded by her arguments and testimony relative to her lamentations of persecution, in March 2013, the IJ ordered her removed.⁴ The BIA affirmed the IJ and, in July 2014, dismissed the appeal. Gyamfi did not seek judicial review of that decision.

Fast-forward three years to August 31, 2017: in light of an I-130 petition filed in November 2015 on her behalf by her recently naturalized U.S. citizen daughter⁵ (and which was approved by DHS in April 2016), Gyamfi sought to adjust her status. She moved to reopen her case and also requested sua sponte ("on its own motion") reopening by the BIA premised on the hardship her removal would have on her children. In response, DHS filed an opposition to the motion, albeit late.

The BIA denied Gyamfi's motion as untimely (the final administrative order entered in July of 2014, and the BIA didn't receive the motion to reopen until August 2017) and not falling within any exception to the ninety-day window to file a motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(i) ; 8 C.F.R. §§ 1003.2(c)(2), 1003(c)(3)(i)-(iv). In addition, the BIA declined to exercise its discretionary authority to reopen the proceedings sua sponte, finding that Gyamfi failed to demonstrate an exceptional situation that would warrant the exercise of its sua sponte power, and she alleged "no current health issues regarding [her I-130-petitioning daughter] or her other United States citizen children that might warrant a finding of exceptional circumstances."

Gyamfi timely petitioned this court for review.

ANALYSIS

Gyamfi offers up a smorgasbord of appellate contentions, but distilling those arguments to their core essence as best we can, we think they primarily fit under two main headings: (1) the BIA abused its discretion by denying her motion to reopen; or, in the alternative, (2) the BIA should have deployed its discretionary authority to reopen the proceedings sua sponte. She advances various arguments in support of these two issues, which we will explore in turn.

And as we review Gyamfi's contestations, we necessarily bear in mind our familiar standard: to the extent we have jurisdiction, "[b]ecause a motion to reopen removal proceedings is a disfavored tool, given the threat it poses to finality, the BIA has a fair amount of latitude to grant or deny the motion and our review is for abuse of discretion only." Mazariegos v. Lynch, 790 F.3d 280, 285 (1st Cir. 2015) (citing Perez v. Holder, 740 F.3d 57, 61 (1st Cir. 2014) ); see also Sihotang v. Sessions, 900 F.3d 46, 48 (1st Cir. 2018) ("Motions to reopen—especially untimely motions to reopen—are disfavored in immigration cases. Consequently, an alien who seeks to reopen removal proceedings out of time ordinarily faces a steep uphill climb."). Unless a petitioner can show that the BIA either committed a material error of law or exercised its authority arbitrarily, capriciously, or irrationally, we will uphold the BIA's decision. See Bbale v. Lynch, 840 F.3d 63, 66 (1st Cir. 2016) (citing Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir. 2007) ).

Before diving into Gyamfi's argument, saying a bit more about the pertinent aspects of the ninety-day rule would be helpful.⁶ Pursuant to 8 U.S.C. § 1229a(c)(7)(C)(i), an alien is entitled to file one motion to reopen removal proceedings within ninety days after the final order of removal. See id. (instructing that, unless an exception applies, "the motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal"); see also 8 C.F.R. § 1003.2(c)(2) (stating that, save for specified exceptions, "an alien may file only one motion to reopen removal proceedings (whether before the Board or the Immigration Judge) and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened"); Neves v. Holder, 613 F.3d 30, 32-33 (1st Cir. 2010) (per curiam). As for the exceptions, Congress enacted a limited list. See 8 U.S.C. § 1229a(c)(7)(C)(ii)-(iv) ; 8 C.F.R. § 1003.2(c)(3).⁷

1. Did the BIA abuse its discretion? ⁸

a. The Ninety-Day Rule

Gyamfi claims the BIA abused its discretion when it declined to grant her motion to reopen. She does not dispute that her August 2017 filing missed the deadline—the BIA's final administrative order was issued on July 17, 2014 and October 13, 2014 (ninety days later) was the last day Gyamfi could have filed her motion. However, she asserts that because she was "prima facie" eligible for status adjustment as a result of the previously unavailable evidence (the I-130 visa her daughter filed on her behalf long after the expiration of the ninety-day limit), the BIA should have ruled differently on 8 U.S.C. § 1229a(c)(7)(C)(i)'s ninety-day bar.

The government disagrees, and its position is simple: the ninety-day limit expired and no exception applies. Indeed, the government points out that Gyamfi cannot be "prima facie" eligible for status adjustment given the untimeliness of her motion.

In support of her claim of "prima facie" eligibility Gyamfi cites to Matter of Garcia, 16 I. & N. Dec. 653, 654 (B.I.A. 1978), a case wherein the BIA explained the appropriateness of exercising its discretion (at least at that time) to reopen immigration proceedings during the pendency of adjustment of status applications of prima facie eligible movants. But her reliance on this case is misplaced. Garcia was decided before Congress enacted time and number bars on motions to reopen, Lemus v. Sessions, 900 F.3d 15, 19 (1st Cir. 2018) (citing Dada v. Mukasey, 554 U.S. 1, 13, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008) (outlining that history) ), and what's more, the BIA, itself, has moved away from its Garcia holding, see id. (collecting BIA cases). Given this evolution (and as we have previously noted), our confidence in Garcia's continuing applicability has been undercut. Id. But whether or not viable, Garcia's recognition of the IJ's discretionary authority is not a rule mandating the exercise of same.

Accordingly, we believe the government has the better argument on the application of the ninety-day rule. Though Gyamfi tells us she can present new evidence, clearly the new evidence she offers, an I-130 visa, is not a statutory exception to the rule. See 8 U.S.C. § 1229a(c)(7)(C) ; 8 C.F.R. § 1003.2(c)(3)(i)-(iv). And absent an exception operating to prevent the ninety-day rule from applying (Gyamfi doesn't actually argue that one does), motions to reopen are subject to the ninety-day rule and Gyamfi missed it. We see no abuse of discretion.

b. Equitable Tolling

Alternatively, Gyamfi argues the BIA erred in not reopening her removal proceedings because she established "unusual facts and exceptional circumstances" meriting the equitable tolling of the ninety-day deadline for filing such motions. Gyamfi submits that she's made the equitable tolling showing by, first, demonstrating that she couldn't have known about her new I-130 beneficiary status within ninety days of her original proceedings and as such, her ignorance of what the future actually would bring constitutes an extraordinary circumstance. As she puts it, "applying this statutory deadline does not serve the interests of justice in this case." Second, she puts into the "extraordinary circumstances" basket the BIA's alleged error in neglecting to consider any factors besides the health of her children.⁹ In particular, she emphasizes the hardship her removal will have on her kids: if they return to Ghana with Gyamfi, they will not enjoy a U.S. education, and Ghanaian high crime and mortality rates, for example, would negatively affect them; and if they stay in the U.S. without her, this also would negatively impact them. The government...