In re J-J-
| Decision Date | 31 July 1997 |
| Docket Number | Interim Decision No. 3323. |
| Citation | 21 I&N Dec. 976 |
| Parties | In re J-J-, Applicant. |
| Court | U.S. DOJ Board of Immigration Appeals |
BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA, HEILMAN, HOLMES, HURWITZ, FILPPU, COLE, MATHON, and GUENDELSBERGER, Board Members. Concurring Opinion: VILLAGELIU, Board Member. Dissenting Opinion: ROSENBERG, Board Member.
SCHMIDT, Chairman.
This case was last before us on August 8, 1995, when we dismissed the applicant's appeal from the decision of an Immigration Judge, denying the applicant's requests for asylum in the United States and withholding of deportation to Liberia. The applicant has now filed both a motion to reopen exclusion proceedings before the Board and a motion to reconsider our decision of August 8, 1995.
The motion to reconsider is untimely, and we are therefore without jurisdiction to consider it. 8 C.F.R. § 3.2(b)(2) (1997). The motion to reopen is likewise untimely. 8 C.F.R. § 3.2(c)(2) (1997). There remains the issue, however, of whether the untimely motion to reopen falls within the regulatory exception allowing for reopening out of time in order to apply for asylum based on changed circumstances arising in the country of nationality. 8 C.F.R. § 3.2(c)(3)(ii) (1997). We hold that this motion to reopen does not fall within the changed circumstances exception, and it will therefore be denied.
The applicant is a native and citizen of Liberia who arrived at New York's John F. Kennedy Airport on September 2, 1994. He surrendered a fraudulent passport to immigration authorities and requested asylum in the United States. The applicant was issued a Notice to Applicant for Admission Detained/Deferred for Hearing Before Immigration Judge (Form I-122) advising him of his apparent excludability under section 212(a)(7) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(7) (1994), for failure to possess a valid visa or travel documents.
At his exclusion hearing on March 23, 1995, the applicant conceded excludability but applied for asylum and withholding of deportation pursuant to sections 208(a) and 243(h) of the Act, 8 U.S.C. §§ 1158(a) and 1253(h) (1994). The Immigration Judge denied both requests, concluding that the applicant did not establish either a well-founded fear or clear probability of persecution. On August 8, 1995, the Board dismissed the applicant's appeal.
Acting pro se, the applicant filed a "Motion to Reopen and/or Reconsideration" with the Board 14 months later, on October 2, 1996. Thereafter, on October 21, 1996, the applicant's prior attorney filed a second motion to reconsider, arguing that the applicant did establish a well-founded fear of persecution, based on the facts alleged in the 1994 asylum application. The Board granted a stay of deportation on January 23, 1997, pending consideration of the instant motions.1
In his motion to reconsider, the applicant argues that the Immigration Judge erred in doubting his credibility or in acknowledging the dangers of Liberia's civil war. The applicant further argues that the Board applied an incorrect standard to the asylum claim. We are without jurisdiction to consider these arguments.
Under the regulations at 8 C.F.R. § 3.2(b)(2), promulgated on April 29, 1996, and effective July 1, 1996, a motion to reconsider a Board decision must be filed not later than 30 days after the mailing of the Board decision, or on or before July 31, 1996, whichever date is later. Only one motion to reconsider may be filed, and there is no exception to the time bar imposed on such motions. Id. As the Board rendered a decision in this case on August 8, 1995, reconsideration of the decision would be barred after July 31, 1996. The applicant's pro se motion to reconsider filed on October 2, 1996, and his motion to reconsider filed by counsel on October 21, 1996, are not timely filed and must therefore be denied.
The applicant also seeks reopening to present evidence of worsening conditions in Liberia that he believes will persuade the Board to change our prior decision and grant him asylum. Pursuant to the regulations at 8 C.F.R. § 3.2(c)(2), only one motion to reopen is allowed and must be filed with the Board not later than 90 days after the date on which the final administrative decision was rendered, or on or before September 30, 1996, whichever date is later. The applicant's motion to reopen, filed on October 2, 1996, is untimely.
The numerical and temporal limitations set forth in 8 C.F.R. § 3.2(c)(2), do not, however, bar motions to reopen to apply or reapply for asylum or withholding of deportation based on changed circumstances arising in the country of nationality, if such evidence is material and was not available and could not have been discovered or presented at the former hearing. 8 C.F.R. § 3.2(c)(3)(ii). The motion must state the new facts to be proved and must be supported by evidentiary material.
The applicant alleges in his motion that he can present new and material evidence that will show he does have a well-founded fear of persecution in Liberia based on the increased ethnic and political violence in that country. The applicant states in his motion that if he is deported to Liberia, he will be in danger, as are many other people there, on account of the fighting between rival tribal and political factions. The applicant's motion is supported by a copy of his 1994 asylum application, and by several articles on Liberia, including Amnesty International reports of 1995, decrying human rights abuses committed by all factions of the war, and reports of May and April 1996 which discuss the problem of thousands of civilians fleeing Liberia after the resumption and intensification of the civil war, despite an August 1995 peace agreement. A civil war has been raging in Liberia since December 1989.2
The Immigration and Naturalization Service opposes the applicant's motion to reopen, arguing that the new evidence presented by the applicant is not material and would not affect the prior decision of the Board.
At his exclusion hearing on March 23, 1995, the applicant testified that he operated a small electrical appliance store in Liberia. He related that on September 20, 1992, he was forcibly recruited from his store by a guerrilla organization know as the National Patriotic Front of Liberia ("NPFL"), led by Charles Taylor. Others in the town who had refused to join the organization were shot. Along with other recruits, he was sent to a training camp in the Ivory Coast for 3 months. He then returned to Liberia to fight the other guerrilla groups, all of whom were vying for power in a multi-factional civil war following the death of Liberia's last president. The applicant testified that he fought with the group, planting bombs close to military tanks and engaging in combat fire in different battles for nearly 18 months following training. After a time, viewing the war as unfair, he sought to escape, despite his fear of the consequences. Others who had tried to escape had been killed.
In May 1994, while encamped in the Ivory Coast, the applicant managed to escape with the help of an acquaintance who secreted the applicant aboard a ship. Once at sea, the applicant was discovered, but the captain knew the applicant's mother and agreed to help him. When the ship docked in Singapore, the captain took the applicant's picture and asked him for $1,000. A few days later, the captain gave the applicant an American passport and took him to the airport.
The applicant testified at his hearing that he would be killed if he returned to Liberia, because the war had gotten worse and because Charles Taylor would consider him a deserter of his group. In his decision, the Immigration Judge held that forced recruitment of an individual by guerrilla forces does not constitute persecution if the guerrillas seek to make the person a member of their group, rather than harm him because he possesses a characteristic they find offensive and wish to overcome. The Board agreed, concluding that the applicant had not shown that the NPFL had any interest in his political opinions, that he ever expressed any specific opinions, or that he deserted the guerrillas based on his refusal to engage in human rights abuses condemned by the international community. INS v. Elias-Zacarias, 502 U.S. 478 (1992); INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). The Board found that the applicant had simply not produced evidence from which it would be reasonable to believe that the harm he suffered was...
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