Bbale v. Lynch

• Decision Date: 24 October 2016
• Docket Number: No. 15-2372,15-2372
• Citation: 840 F.3d 63
• Parties: Douglas Jimmy Bbale, Petitioner, v. Loretta E. Lynch, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — First Circuit

840 F.3d 63

Douglas Jimmy Bbale, Petitioner,

v.Loretta E. Lynch, Attorney General of the United States, Respondent.

No. 15-2372

United States Court of Appeals, First Circuit.

October 24, 2016

George Charles Maroun, Jr. and Maroun & Cabelus LLC on brief for petitioner.

Benjamin C. Mizer , Principal Deputy Assistant Attorney General, Civil Division, United States Department of Justice, John S. Hogan , Assistant Director, Office of Immigration Litigation, and Ashley Martin , Trial Attorney, Office of Immigration Litigation, on brief for respondent.

Before Thompson, Selya and Stahl, Circuit Judges.

SELYA, Circuit Judge.

The petitioner, Douglas Jimmy Bbale, seeks judicial review of a final decision of the Board of Immigration Appeals (BIA), which denied his motion to reopen removal proceedings. Discerning no abuse of the BIA's broad discretion, we deny the petition.

I. BACKGROUND

The petitioner, a Ugandan national, was admitted to the United States as a visitor for a six-month period that expired on November 22, 2000. He overstayed, and almost nine years elapsed before the Department of Homeland Security (DHS) instituted removal proceedings against him.

The petitioner initially pursued an application to adjust his status to that of a lawful permanent resident based on a petition filed by his citizen-spouse. That strategy backfired when, on December 5, 2011, United States Citizenship and Immigration Services issued a notice of intent to revoke the petition, citing inconsistencies in the testimony of the petitioner and his wife.

After withdrawing his adjustment application, the petitioner applied for asylum and withholding of removal.¹ His claim for asylum was predicated on an asserted fear of persecution in Uganda premised on genuine and imputed political opinion. Specifically, he alleged that in April of 1998, his father was imprisoned—and ultimately never seen again—because he was an active member of the Democratic Party of Uganda, a political party that opposed the Ugandan President, Yoweri Museveni. He added that between 1998 and 1999, he himself was detained by Ugandan police on four occasions. Withal, he was not physically harmed and the longest period he was detained was one day. The petitioner also suggested that his more recent political activities would subject him to persecution in Uganda: while living in the United States, the petitioner has organized and participated in anti-Museveni demonstrations.

The petitioner also averred that in 2009 his brother was arrested in Uganda on a murder charge. The petitioner branded this arrest as bogus, contending that the Museveni government had fabricated allegations that his brother was practicing voodoo and witchcraft on small children, including child sacrifice. Although the brother was initially acquitted, he was subsequently convicted and remains in prison. According to the petitioner, both the arrest and prosecution were politically motivated, and his brother is innocent.

The petitioner conceded removability in 2012 and later testified at a merits hearing in the immigration court on January 27, 2014. At the conclusion of the hearing, the immigration judge (IJ) denied the petitioner's applications for asylum and withholding of removal in a bench decision. The IJ denied the asylum application as untimely, noting that the petitioner had not alleged changed or extraordinary circumstances that could justify the 13–year delay in seeking asylum. The IJ also concluded that the petitioner had failed to establish his eligibility for withholding of removal.

The petitioner appealed to the BIA. He argued that he did not apply earlier for asylum because he was not then aware of either the filing deadline or the severity of his brother's circumstances. With respect to withholding of removal, he argued that the IJ had failed to consider the connection between the accusations of witchcraft against his brother and the petitioner's membership in a family now associated with witchcraft. On June 10, 2015, the BIA rejected these arguments and dismissed the petitioner's appeal.

The petitioner did not seek judicial review of the BIA's decision but, on August 10, 2015, moved to reopen removal proceedings. The petitioner submitted that a key witness—his niece—had been unable to testify at his merits hearing because she was mentally incapacitated due to the psychological trauma that she suffered as a result of her father's (the petitioner's brother's) immurement. He added that his niece had received asylum based on circumstances substantially similar to those that pertained in his case.

The BIA denied the motion to reopen. It concluded that the petitioner had failed to satisfy the requirements for reopening, as he did not demonstrate that the motion was supported by new, previously unavailable, material evidence. The BIA went on to explain that the fact that the petitioner's niece was granted asylum in 2012 was not a new fact supported by previously unavailable evidence that could not have been presented at the removal hearing; and it determined that a medical report submitted by the petitioner did not demonstrate that his niece was incapable of providing testimony at the merits hearing.

This timely petition for judicial review followed. The only issue open to us is whether the BIA abused its discretion in denying the petitioner's motion to reopen.

II. ANALYSIS

We preface our analysis with a summary of the applicable legal standards. Motions to reopen removal proceedings are contrary to “the compelling public interests in finality and the expeditious processing of proceedings” and are thus disfavored. Roberts v. Gonzales, 422 F.3d 33, 35 (1st Cir. 2005) (quoting Falae v. Gonzáles, 411 F.3d 11, 14–15 (1st Cir. 2005) ). Consistent with this principle, the BIA enjoys wide latitude in deciding whether to grant or deny such a motion. See INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). Judicial review of such a decision is solely for abuse of discretion. See Roberts, 422 F.3d at 35 ; Falae, 411 F.3d at 14. Consequently, the BIA's decision will stand unless the petitioner can show that the BIA committed an error of law or exercised its judgment in an arbitrary, capricious, or irrational manner. See Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir. 2007).

An alien seeking to reopen removal proceedings based on newly discovered evidence must both “introduce new, material evidence that was not available at the original merits hearing” and “make out a ‘prima facie case of eligibility for the relief sought.’ ” Perez v. Holder, 740 F.3d 57, 62 (1st Cir. 2014) (quoting Jutus v. Holder, 723 F.3d 105, 110 (1st Cir. 2013) ). The alien's 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 C.F.R. § 1003.2(c)(1).

With this framework in place, we turn to the case at hand. To begin, the petitioner claims that the BIA abused its discretion in finding that his niece's anticipated testimony was not new, previously unavailable material evidence. The record belies this claim: it shows that the anticipated testimony of the petitioner's niece (who was granted asylum in 2012) was neither new, previously unavailable, nor material. We explain briefly.

As an initial matter, we note that the petitioner's motion was procedurally flawed; it did not sufficiently articulate what testimony his niece would provide if the proceedings were reopened. This flaw is fatal because we—like the BIA—are unable adequately to assess the materiality of the proffered testimony. Though the petitioner stated conclusorily that his niece had been granted asylum based on the same circumstances as those asserted in his application, his motion failed to describe the nature and extent of her expected testimony.

Nor was this the only shortcoming in the petitioner's motion to reopen. For the most part, the petitioner failed to support his motion with the requisite “affidavits or other evidentiary material.” 8 C.F.R. § 1003.2(c)(1).² A party's factual assertions in pleadings are not evidence and are not sufficient to establish material facts. See Jupiter v. Ashcroft, 396 F.3d 487, 491 (1st Cir. 2005).

The petitioner attempts to excuse himself from this requirement by arguing that information pertaining to his niece's asylum application is confidential and, thus, within the ambit of 8 C.F.R. § 208.6.³ But this is whistling past the graveyard: nothing in the cited regulation prevented the petitioner's niece from recounting the substance of her anticipated testimony in an affidavit or declaration. The regulation bars the government from disclosing certain confidential information; it does not bar either the asylum-seeker or prospective witnesses from testifying about facts within their personal knowledge.

Apart from these procedural shortcomings, the petitioner's proffer—as the BIA recognized—failed on the merits: even if the petitioner had adequately stated the facts that would be presented and duly supported that account with affidavits or other evidentiary materials, the information that...