Darby v. Attorney Gen. of the U.S., No. 20-2107

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: PORTER, Circuit Judge.
• Citation: 1 F.4th 151
• Parties: Kayann Antoinette DARBY, a/k/a Kayan Darby, a/k/a Larece Knox; a/k/a Kayann Darny Petitioner v. ATTORNEY GENERAL OF the UNITED STATES of America
• Docket Number: No. 20-2107
• Decision Date: 17 June 2021

1 F.4th 151

Kayann Antoinette DARBY, a/k/a Kayan Darby, a/k/a Larece Knox; a/k/a Kayann Darny Petitioner
v.
ATTORNEY GENERAL OF the UNITED STATES of America

No. 20-2107

United States Court of Appeals, Third Circuit.

Argued: January 27, 2021
Filed: June 17, 2021

Alexander B. Bowerman [Argued], David Newmann, Hogan Lovells US, 1735 Market Street, 23rd Floor, Philadelphia, PA 19103, Counsel for Petitioner Kayann Antoinette Darby

Sheri R. Glaser [Argued], United States Department of Justice, Office of Immigration Litigation, Room 5214, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Respondent Attorney General of the United States of America

Before: RESTREPO, BIBAS, and PORTER, Circuit Judges.

OPINION OF THE COURT

PORTER, Circuit Judge.

Kayann Darby is a native and citizen of Jamaica living in the United States. In October 2017, an Immigration Judge ("IJ") sustained charges of removability against Darby after she pleaded guilty to conspiracy to commit mail and wire fraud. The IJ denied her applications for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"), and ordered that Darby be removed to Jamaica. The Board of Immigration Appeals ("BIA") affirmed. Darby moved to reopen her removal proceedings a year and a half later, well past the statutory deadline to do so. But she argued that the deadline did not apply because circumstances in Jamaica had changed concerning her CAT claim. Darby also argued that the BIA should reopen proceedings because she had shown new eligibility for an adjustment of status. The BIA rejected Darby's arguments and denied her motion to reopen, so she petitions this Court to review the BIA's decision. We will deny the petition.

I

A

Darby entered the United States at an unknown time and place. In 2001, one of Darby's family members filed an I-130 Petition

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for Alien Relative, listing Darby as the beneficiary. The petition was approved in 2005, and Darby filed for an adjustment of status in 2009. In 2010, Darby became a lawful permanent resident of the United States.

In 2012, Darby began participating in a phone scam to defraud elderly people. The leader of the scam, Ringo, lived in Jamaica. Ringo would call elderly U.S. citizens from a disguised number and inform them that they had won a lottery and needed only to pay a tax to receive their winnings. Those who bought into the scam would send the "tax" money to Ringo through his intermediaries, one of whom was Darby's cousin, Shereen.

Shereen stayed at Darby's home in New York for several weeks and began receiving packages there. Shereen asked Darby to receive a $3,000 wire transfer for her through Western Union in exchange for ten percent of the amount transferred. Darby accepted, and she continued to receive similar wire transfers until Western Union blocked her from sending or receiving money.

Darby became more involved in the scam and began traveling to Jamaica to hand-deliver money to Ringo. Eventually, Ringo sent a package of money to Darby's house that never arrived. Darby told Ringo over the phone that she never received the package, but Ringo suspected she was lying. He threatened that if Darby did not return the money, he would "blow up [her] house with bullets." A.R. 340. Darby insisted that she had not received the package and told Ringo to stop sending her money. After that conversation, Darby received no more funds from Ringo and had no further contact with him.

In 2014, Darby was arrested for her involvement in the lottery scam. She pleaded guilty to conspiracy to commit mail and wire fraud in violation of 18 U.S.C. §§ 1349, 1341, and 1343. As part of her guilty plea, Darby provided information about Ringo to the Assistant U.S. Attorney prosecuting her case. She identified Ringo in a photograph but did not receive a reduced sentence in exchange for providing the information. Darby was sentenced to thirty months in prison and ordered to pay restitution of $93,836.

B

Because of Darby's conviction, the Department of Homeland Security ("DHS") filed charges of removability against her under 8 U.S.C. § 1227(a)(2)(A)(i) and (iii). The IJ sustained the charges. At her merits hearing, Darby claimed asylum, withholding of removal, and CAT protection. The IJ found Darby credible. He then ruled that Darby was statutorily barred from receiving asylum and that she had not established a claim for withholding of removal.

The IJ also denied Darby's CAT claim, which formed the sole basis of Darby's appeal. The IJ ruled that Darby had not established that she would likely suffer torture if removed to Jamaica, finding that: (1) nothing in the record indicated that Ringo or his associates were looking for Darby; (2) Darby had no contact with Ringo since he threatened her over the phone in 2013; (3) Ringo did not know Darby's whereabouts; (4) neither Ringo nor his associates acted on Ringo's threats against Darby; (5) Darby did not know whether Ringo knew of her cooperation with the U.S. Attorney's Office; and (6) Darby did not know whether Ringo or his associates ever acted on threats they made to other individuals. The IJ also found no objective evidence that Darby could not relocate to an area in Jamaica where Ringo could not find her. Finally, the IJ found that even if Darby had established a likelihood

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that she would suffer torture in Jamaica, she had not produced sufficient evidence that Jamaican government officials would target her or be willfully blind to any possible torture. Darby submitted evidence suggesting that some Jamaican police officers have been involved in the lottery scam, but the IJ found that, while there may be rogue police officers, Jamaican officials oppose and combat organized crime. The IJ thus denied Darby's applications for asylum, withholding of removal, and CAT protection.

Darby appealed her CAT claim to the BIA, which affirmed the IJ's decision. The BIA held that the IJ did not clearly err in finding that Darby had not established that she would more likely than not experience torture if removed. Darby had presented "insufficient evidence to demonstrate that each step of the hypothetical chain of events, with respect to [her possible torture], is more likely than not to occur in this case." A.R. 171–72. The BIA also affirmed the IJ's determination that Darby had failed to establish that Jamaican officials would likely acquiesce to her torture. Darby's evidence that Jamaican police officers were involved in similar scams was insufficient to establish acquiescence, "particularly ... in light of the [IJ]’s finding that there was also evidence in the record establishing that the Jamaica government actively opposes and combats organized crime and government corruption." A.R. 172.

C

A year and half after the BIA issued its decision, Darby moved to reopen removal proceedings with the BIA. Darby claimed two bases for her motion: (1) "a substantial change of circumstances" regarding her CAT claim; and (2) her "new-found eligibility for Adjustment of Status ... based upon an approved I-130 Petition filed by her United States Citizen son." A.R. 22. In support of the first basis, Darby submitted evidence suggesting that Ringo had been extradited to the United States and had pleaded guilty to charges related to the lottery scheme. She claimed in her affidavit that Ringo had completed his sentence and returned to Jamaica,¹ and that he is aware of Darby's cooperation against him. Darby also submitted a news article reporting the death of a woman in Jamaica who Darby claims was murdered "due to conflict with Ringo concerning the lottery scheme." A.R. 26.

In support of the second basis for reopening, Darby submitted documents showing that she is now eligible for an adjustment of status. After the BIA dismissed Darby's appeal, Darby's son filed an I-130 Petition for Alien Relative on behalf of Darby. The petition was approved, meaning that Darby can now petition the agency for an adjustment of status. Darby has prepared the documents necessary to file the petition, including a waiver under 8 U.S.C. § 1182(h) for her criminal conviction. Darby believes "there is an overwhelming likelihood that this waiver and [her] Adjustment of Status application will be approved ... due to [the] extreme hardship" that would be "suffered by [her] family members" if she were to be removed to Jamaica. A.R. 35.

The BIA denied Darby's motion to reopen. The BIA began by noting that Darby filed her motion to reopen more than ninety days after the BIA dismissed her appeal, well after the statutory deadline. It then held that Darby had not established

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that an exception to the ninety-day filing deadline applies, or that an exceptional situation warranting sua sponte reopening exists. In response to Darby's claims that Ringo is now in Jamaica and is aware of her cooperation against him, the BIA held that "[t]he evidence presented with the motion does not establish a material change in country conditions or circumstances in Jamaica to warrant granting the untimely motion." A.R. 3. The BIA emphasized that the motion to reopen contained no evidence warranting reconsideration of its conclusion that Darby had failed to...