Raza v. Gonzales

• Decision Date: 19 April 2007
• Docket Number: No. 06-1672.,06-1672.
• Citation: 484 F.3d 125
• Parties: Mudaser RAZA, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

484 F.3d 125

Mudaser RAZA, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 06-1672.

United States Court of Appeals, First Circuit.

Submitted March 16, 2007.

Decided April 19, 2007.

Marshall A. Mintz on brief for petitioner.

Peter D. Kessler, Assistant Attorney General, Civil Division, Mark Walters, Assistant Director, Office of Immigration Litigation, and Dalin R. Holyoak, Trial Attorney, United States Department of Justice, on brief for respondent.

Before TORRUELLA, Circuit Judge, SELYA and STAHL, Senior Circuit Judges.

SELYA, Senior Circuit Judge.

The petitioner seeks judicial review of a decision of the Board of Immigration Appeals (BIA) denying his motion to reopen a removal proceeding. He asserts that the BIA abused its discretion by failing to consider changed circumstances in his homeland and, instead, ruling that his motion was numerically and temporally barred. Discerning neither an abuse of discretion nor an error of any kind, we deny the petition.

The basic facts are relatively straightforward. The petitioner, Mudaser Raza,¹ is a twenty-seven-year-old Pakistani national who unlawfully entered the United States in the fall of 2000. On December 6, 2000, the authorities arrested the petitioner and initiated a removal proceeding.

In an appearance before an immigration judge (IJ) on November 29, 2001, the petitioner conceded removability and applied for an adjustment of status based on an ostensible marriage to an American citizen. On July 2, 2002, the IJ pretermitted this application, finding that the petitioner had lied, had submitted false documents, and in any event, had failed to satisfy the requirements of the applicable adjustment of status statute. See 8 U.S.C. § 1255(a). Accordingly, the IJ ordered removal.

The petitioner did not perfect an appeal of this removal order to the BIA. That lapse did not signal the end of the matter, however; a month after the appeal period had expired, the petitioner asked the BIA to remand his case to the IJ. The BIA denied the motion to remand on December 23, 2003.

On March 22, 2004, the petitioner lodged another motion with the BIA. This motion, denominated as a motion to reopen the removal proceeding, hinged on a claim that he had remarried. The BIA denied the motion on May 10, 2004, concluding that the petitioner was not eligible for adjustment of status as he was not legally admitted into the United States and that, in any event, he had failed to make a showing sufficient to warrant reopening. See id. § 1255(a); 8 C.F.R. § 1003.2. The petitioner accepted this rebuff without seeking judicial review.

On October 17, 2005, the petitioner filed yet another motion to reopen. In this filing, he alleged that, after his arrival in the United States, he had apostatized his former Sunni Islam faith and become an adherent of the Shia Islam faith. He offered no dates or details in support of these bare assertions, nor did he furnish any evidence corroborating his claimed conversion. He further averred — again, without corroboration — that his Sunni Muslim family members in Pakistan had not only disowned him but also had threatened him with harm. He said that he feared what they might do upon his return. Finally, he claimed that sectarian violence against Shiite Muslims had escalated in Pakistan, and that this change in country conditions substantiated his fear of persecution incident to forced repatriation. To support that claim, the petitioner proffered a series of internet articles describing contemporaneous country conditions in Pakistan.

On March 27, 2006, the BIA denied the petitioner's motion to reopen. It noted that the motion was successive as well as untimely and, thus, subject to dismissal on numerical and temporal grounds. Weighing the propriety of a possible exception to these procedural bars, the BIA determined that the motion (i) rested "upon mere speculation about what may happen to [the petitioner] upon his return" and (ii) failed to make out a prima facie case of eligibility for either asylum or withholding of removal. Accordingly, the BIA concluded that the motion did not fall within the scope of any recognized exception to the numerical and temporal limitations and, so, denied the petitioner's motion. This timely petition for judicial review followed.

We preface our inquiry into the correctness of the BIA's ruling with a précis of the applicable legal standards. Motions to reopen removal proceedings are disfavored as contrary to "the compelling public interests in finality and the expeditious processing of proceedings." Roberts v. Gonzales, 422 F.3d 33, 35 (1st Cir.2005) (quoting Falae v. Gonzales, 411 F.3d 11, 14-15 (1st Cir.2005)). As a result, the BIA enjoys considerable 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 decisions is solely for abuse of discretion. See Roberts, 422 F.3d at 35; Falae, 411 F.3d at 14. This means, in effect, that such a decision will stand unless the complaining party can show that the BIA committed an error of law or exercised its judgment in an arbitrary, capricious, or irrational way. See Maryam v. Gonzales, 421 F.3d 60, 62 (1st Cir.2005); Wang v. Ashcroft, 367 F.3d 25, 27 (1st Cir.2004).

A maze of regulations affects the conduct of removal proceedings. Under this regulatory scheme, an alien ordinarily may file only a single motion to reopen a removal proceeding — and that motion must be submitted within ninety days of the rendition of the final administrative decision. See 8 C.F.R. § 1003.2(c)(2). This means that motions to reopen are limited both numerically (one to a customer) and temporally (a ninety-day window).

The petitioner concedes that the motion sub judice fails to meet these requirements. Numerically, this is his second such motion;² temporally, the motion was filed more than ninety days after the final administrative decision ordering his removal.

These numerical and temporal limitations are not absolute. Of particular pertinence here, a showing of exceptional circumstances may operate to relax them. See id. § 1003.2(c)(3); see also Roberts, 422 F.3d at 36. Under this rubric, the agency may waive numerical and temporal bars to reopening if an alien makes a convincing demonstration of changed conditions in his homeland. Those changes, however, must be material to the underlying substantive relief that the alien is seeking (here, asylum or withholding of removal) and the evidence tendered in support thereof must have been unavailable during the prior proceedings. See 8 C.F.R. § 1003.2(c)(3)(ii). Moreover, such a showing requires more than a conclusory claim that the sky is falling: the evidence proffered in support of the motion must, at a bare minimum, establish a prima facie case sufficient to ground a claim of eligibility for the underlying substantive relief. See INS v. Abudu, 485 U.S. 94, 104, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988); Maryam, 421 F.3d at 62.

Against this backdrop, we return to the case at hand. The petitioner asseverates that the BIA failed to appreciate the significance of, or even address, the proffered evidence of changed country conditions. Building on this foundation, he argues that this failure, which cemented into place the BIA's decision to deny his motion to reopen as numerically and temporally barred, constituted an abuse of discretion. The record, however, belies the foundational premise on which this argument rests: it shows beyond any peradventure of doubt that the BIA took cognizance of the petitioner's proffer and adequately explained why the conclusion that the petitioner urged should not carry the day.

The BIA's memorandum of decision tells the tale. In that rescript, the BIA explicitly acknowledged the petitioner's claim that his case fit within the "changed circumstances" exception to the numerical and temporal limitations. It then limned the relevant legal standard, considered the petitioner's allegations (including those pertaining to conversion and evolving country conditions), and found those thinly supported allegations insufficient to bring the exception into play. In the process, the BIA observed that the "country conditions information" did not specifically refer to the petitioner and that in several critical aspects the motion was "based upon mere speculation about what may happen to the [petitioner] upon his return" to Pakistan. Thus, notwithstanding the contents of his proffer, the petitioner had failed to meet the requirements for an exception to the numerical and temporal limitations.

We discern no flaw in the BIA's analysis. An agency is not required to dissect in minute detail every contention that a complaining party advances. It is enough if the agency fairly considers the points raised by the complainant and articulates its decision in terms adequate to allow a reviewing court to conclude that the agency has thought about the evidence and the issues and reached a...