Saka v. Holder

• Decision Date: 23 December 2013
• Docket Number: No. 12–2193.,12–2193.
• Citation: 741 F.3d 244
• Parties: Olukayode Ganiyu SAKA, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

741 F.3d 244

Olukayode Ganiyu SAKA, Petitioner,

v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.

No. 12–2193.

United States Court of Appeals,First Circuit.

Dec. 23, 2013.

Stephen L. Baruffi, on brief for petitioner.

Joanna L. Watson, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Stuart F. Delery, Principal Deputy Assistant Attorney General, Civil Division, and Jamie M. Dowd, Senior Litigation Counsel, on brief for respondent.

Before TORRUELLA, LIPEZ and THOMPSON, Circuit Judges.

TORRUELLA, Circuit Judge.

Olukayode Ganiyu Saka (“Saka”) entered the United States using a false name and fraudulently obtained visa. Upon discovery of this fraud, removal proceedings commenced. Citing fear of religious persecution, Saka filed for withholding of removal and protection under the Convention Against Torture (“CAT”). The Immigration Judge (“IJ”), in a decision later affirmed by the Board of Immigration Appeals (“BIA”), denied this relief and ordered removal. Thereafter, the BIA also denied Saka's motion to reopen, which added a claim for asylum, and his subsequent motion to reconsider. Saka now appeals. Insofar as it relates to his motion to reopen, we dismiss this appeal as untimely. Taking up only his motion to reconsider, we find no evidence of legal error nor an abuse of discretion, and thus, we deny Saka's petition for review.

I. Background

A. Removal Proceedings

Saka, a citizen of Nigeria, entered the United States on June 29, 2002, using a doctored passport and fraudulently obtained visa bearing the name Olukayode Olapido–Wemimo. Five years later, still using this false name, Saka filed an application for naturalization. A close review of his application eventually revealed Saka's true identity, and the Department of Homeland Security commenced removal proceedings, alleging that Saka had procured admission into the United States by means of fraud or willful misrepresentation.

During removal proceedings, Saka admitted to falsifying his entry documents and conceded removability but, citing fear of persecution in Nigeria based on his 2003 conversion to Christianity, filed for withholding of removal and CAT relief.¹ Saka, who had been raised as a practicing Muslim, testified that his conversion had prompted death threats from angry family members in Nigeria, who believed him an apostate. He suggested that these threats of violence fit a larger pattern of religious persecution in which the Nigerian government was acquiescent. Saka did not seek asylum at this time, informing the IJ that he was aware any claim would be outside the one-year deadline for asylum petitions.

Ultimately, the IJ determined that Saka's testimony was not credible given his past use of falsified documents and his history of making dishonest statements to immigration officials. The IJ also found insufficient evidence that Christians were subject to religious persecution in Nigeria based on their beliefs. Moreover, even had such persecution been proven, the IJ questioned whether Saka was indeed a practicing Christian. Specifically, the IJ expressed significant skepticism as to why, although claiming to have become a devout Christian in 2003, Saka was only baptized in June 2009—three months after removal proceedings began. On July 9, 2010, the IJ ordered removal. The BIA affirmed.

B. Motion to Reopen

On March 19, 2012, Saka filed a motion to reopen, citing changed country conditions. In addition to claiming continued eligibility for withholding of removal and CAT relief, Saka argued that he was newly eligible for asylum because changed country conditions constitute an exception to the one-year deadline for such claims. Saka's motion was supported by evidence purporting to show increased persecution of Christians in Nigeria. Specifically, the evidence pertained to the 2009 Boko Haram Uprising, during which religiously motivated violence left nearly 1,000 Nigerians dead. Saka also provided affidavits from his minister stating that he knew Saka to be a practicing Christian, and from a cousin in Nigeria corroborating Saka's claim that family members remained angry about his conversion.

The BIA denied this motion, finding that both the affidavits and the vast majority of news articles provided by Saka were not newly available, but instead contained information that could have been provided during his initial proceedings. Even assuming that the small number of articles that post-dated Saka's initial proceedings could prove increased persecution, the BIA again stated that Saka had offered inadequate proof that he “is or would be perceived to be Christian” if returned. A written order denying Saka's motion was published on May 10, 2012. This order, however, referenced only withholding of removal and CAT relief. No mention was made of Saka's asylum claim; a mistake that would become paramount in later stages of these proceedings.

C. Motion to Reconsider

On June 8, 2012, Saka filed a motion to reconsider, asserting that the BIA had erred by: (1) ignoring accounts of significantly increased persecution of Christians in Nigeria, (2) making improper credibility determinations illustrative of an implicit bias against his claims, and (3) failing to address his claim for asylum. The BIA denied this motion, affirming its prior determination that Saka's evidence was not newly available and did not show that he was, in fact, a devout, practicing Christian. It also denied making any improper credibility determinations, reasoning that any evidence discounted in its earlier decision was ignored solely on the basis that it was not newly available.

In contrast, the BIA admitted that it had erred by failing to address Saka's asylum claim, but ultimately found this error harmless. The BIA pointed out that under 8 C.F.R. § 1003.2(c)(1) a timely claim for asylum would face the same standard for reopening as Saka's other claims for withholding of removal and CAT relief. An untimely application for asylum, however, would face an even higher burden, requiring proof of changed country conditions under 8 U.S.C. § 1158(a)(2)(D). Thus, having failed to present newly available evidence sufficient to reopen under the more forgiving standard, the BIA reasoned that Saka would have necessarily failed to meet the burden for raising his untimely asylum claim as well. Because the BIA found this error to lack materiality, it concluded that reconsideration was unnecessary. A final order denying Saka's motion was entered on September 4, 2012.

II. Discussion

On October 2, 2012, Saka sought appellate review of both his motion to reopen and his subsequent motion to reconsider. We take up each motion in turn.

A. Motion to Reopen

Petitioners seeking review of a final BIA order before this court must abide by a strict thirty-day filing deadline. 8 U.S.C. § 1252(b)(1); Ven v. Ashcroft, 386 F.3d 357, 359 (1st Cir.2004). This deadline runs from the time a final order is entered; subsequent motions before the BIA do not toll or extend it. Zhang v. INS, 348 F.3d 289, 292 (1st Cir.2003) (citing Stone v. INS, 514 U.S. 386, 405–06, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995)). Because this deadline is a jurisdictional requirement, we are strictly bound to dismiss petitions filed beyond its outer limit. Ven, 386 F.3d at 359 (citing Zhang, 348 F.3d at 292).

Saka's appeal was filed approximately five months after the BIA entered a written order denying his motion to reopen, well beyond the deadline. Nonetheless, seizing upon the BIA's failure to explicitly resolve his claim for asylum, Saka argues that we retain jurisdiction. Citing a Ninth Circuit case, Go v. Holder, 640 F.3d 1047, 1051 (9th Cir.2011), he argues that motions remain live so long as any possibility of relief remains. See id. (finding jurisdiction appropriate despite late filing where, in ruling on the motion, the BIA remanded one of three claims for further proceedings). Applying Go 's reasoning, Saka theorizes that the BIA's order denying his motion to reopen was not final because it did not specifically foreclose his claim for asylum, thus leaving open some possibility of relief. Under this theory, the motion to reopen became final only on September 4, 2012, when—in ruling on his subsequent motion to reconsider—the BIA finally dismissed Saka's asylum claim.

We are unconvinced. Whatever the merits of Go 's reasoning, we are neither bound by its precedent nor unable to easily distinguish it from the case at hand. Here, no portion of Saka's claim was remanded for further consideration, and the BIA in no way indicated that additional proceedings were necessary. In contrast, the BIA's order unequivocally stated that “[t]he motion to reopen is denied.” This blanket denial is significantly distinct from the facts of Go, which fit neatly into an administrative scheme that allows the BIA to “return a case to ... an immigration judge for such further action as may be appropriate, without entering a final decision on the merits.” 8 C.F.R. § 1003.1(d)(7).

Simply put, Saka sought to have his proceedings reopened, and the BIA definitively declined to do so. Although the BIA's order failed to make specific mention of Saka's asylum petition, it clearly intended to issue a final denial of all of his claims. Indeed, had Saka timely appealed the denial of his motion to reopen we would have had jurisdiction, if only to remand it to the BIA to properly address the asylum claim. See Halo v. Gonzales, 419 F.3d 15, 18–20 (1st Cir.2005) (finding remandappropriate where the BIA failed to adequately articulate its reasons for denying asylum). As such, we find that despite the BIA's failure to explicitly dismiss Saka's asylum claim, its May 10, 2012 order did not reasonably suggest any continuing possibility of relief on this motion to reopen.²

Moreover, adopting Saka's argument in practice would render void the rule that subsequent motions before the BIA cannot toll the thirty-day deadline for...