Yasin v. Attorney Gen., 20-2509
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
| Writing for the Court | RESTREPO, CIRCUIT JUDGE |
| Parties | ARFAN YASIN, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA |
| Docket Number | 20-2509 |
| Decision Date | 20 December 2021 |
ARFAN YASIN, Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA
No. 20-2509
United States Court of Appeals, Third Circuit
December 20, 2021
Submitted Under Third Circuit L.A.R. 34.1(a) April 22, 2021
On Petition for Review of an Order of the Board of Immigration Appeals (BIA-1: A074-857-795) Immigration Judge: Eugene Pugliese
Usman B. Ahmad Counsel for Petitioner
Jeffrey Bossert Clark Andrew N. O'Malley Sarai M. Aldana United States Department of Justice Office of Immigration Litigation Counsel for Respondent
Before: AMBRO, RESTREPO, Circuit Judges, and NOREIKA [*] , District Judge
OPINION
RESTREPO, CIRCUIT JUDGE
Arfan Yasin, a citizen and native of Pakistan, last entered the United States over two decades ago. In 2002, he became subject to a final order of removal issued by the Board of Immigration Appeals ("BIA"). He continued residing in the United States following the issuance of his final order of removal, and, in 2017, he and his United States citizen wife
welcomed a United States citizen daughter. Yasin's daughter requires regular medical treatment to address gross developmental delays.
Approximately seven months following his daughter's birth, Yasin filed an I-360, Petition for Amerasian, Wid-ow(er), or Special Immigrant, requesting classification "as the abused spouse of a United States citizen" under the Violence Against Women Act ("VAWA"). His I-360 self-petition was approved over two years later, and in December 2019 - more than 17 years following his final order of removal - Yasin filed a motion to reopen sua sponte his removal proceedings on the ground that reopening was warranted to address his classification as an abused spouse under VAWA. The BIA denied his motion, refusing to grant Yasin a waiver of the 1-year limitations period under 8 U.S.C. § 1229a(c)(7)(C)(iv)(III), as applicable to VAWA-based motions to reopen.
Because the BIA's decision whether to waive § 1229a(c)(7)(C)(iv)(III)'s limitations period is an exercise of discretion committed by statute to the Attorney General, we apply 8 U.S.C. § 1252(a)(2)(B)(ii)'s jurisdiction-stripping provision and hold that our Court lacks jurisdiction to review Yasin's motion to reopen. For the reasons set forth in this opinion, we will deny the petition.
I. A.
Yasin last entered the United States near Massena, New York on or about August 17, 2000. That same day, the Government served him with a Notice to Appear ("NTA"), charging him as removable from the United States pursuant to Section 212(a)(6)(A)(i) of the Immigration and Nationality Act for being "an alien present in the United States without being admitted or paroled, or who arrived in the United States at any time or place other than as designated by the Attorney General." A.R. 171. On August 30, 2000, the Government filed the NTA with the Executive Office for Immigration Review, thereby formally initiating removal proceedings. Approximately two months later, Yasin filed a motion to change venue in which he admitted to the allegations stated in the NTA and conceded to being removable as charged.[1]
On April 12, 2001, Yasin applied for withholding of removal and asylum. The Immigration Judge ("IJ") denied Yasin's application in an oral decision on September 10, 2001. According to the IJ, Yasin's claims lacked corroboration, credibility, and logic. Yasin appealed, and the BIA affirmed the IJ's decision, without opinion, on September 24, 2002.
B.
In June 2016, following a religious ceremony, Yasin -still residing in the United States - registered with the requisite local authorities a marriage between him and a United States citizen. In January 2017, the couple welcomed a United States citizen daughter. Following the child's birth, Yasin's spouse "regularly began subjecting him to psychological abuse and extreme cruelty, often using their child as a means of controlling [him]." A.R. 11. During this period of abuse, the child was diagnosed with "developmental gross motor delays," which required her to receive regular medical care. A.R. 12. Yasin "ensured that he cared for his daughter's needs" and "began taking [her] for treatment[, ] taking her to and from appointments, and regularly ensuring to follow up with [her] specialist." A.R. 12. He also "assist[ed] his daughter through home exercises to alleviate [her] pain." A.R. 14. According to Yasin, his spouse did not actively participate in the child's medical treatment. In August 2017, Yasin filed an I-360, Petition for Amerasian, Widow(er), or Special Immigrant, requesting classification "as the abused spouse of a United States citizen" pursuant to VAWA. A.R. 12. His self-petition was approved in September 2019.
C.
On December 23, 2019, more than 17 years after becoming subject to a final order of removal, Yasin filed a motion with the BIA to reopen sua sponte his removal proceedings. He argued that his marriage, the abuse that he suffered
at the hands of his spouse, and the approval of his I-360 selfpetition all amounted to "new and material evidence that was not previously available" at the time that the BIA issued his final order of removal in 2002. A.R. 13. Recognizing that his petition was untimely, Yasin urged the BIA to waive the 1-year limitations period for filing a motion to reopen under 8 U.S.C. § 1229a(c)(7)(C)(iv)(III) (the special rule for battered spouses, children, and parents) on a finding that his child would suffer "extreme hardship" if the BIA denied him the relief sought in his motion to reopen, due to her medical diagnosis and his active role in her treatment. A.R. 13-14. Yasin also maintained that the BIA should grant his motion to reopen for various reasons of equity, and for the sake of judicial efficiency.
The BIA denied Yasin's motion on June 29, 2020. Concluding that he was not eligible for a waiver of the limitations period, the BIA acknowledged that it was "sympathetic" to Yasin's situation but reasoned that the evidence provided "[did] not establish the requisite extraordinary circumstances or extreme hardship necessary to waive the applicable 1-year filing deadline." A.R. 3. The BIA also noted that "[b]ecoming eligible for relief from removal after a final administrative order has been entered is common and does not, in itself, constitute an exceptional situation warranting [its] consideration of an untimely motion." A.R. 3 (citing Matter of Yauri, 25 I&N Dec. 103, 105 (BIA 2009)). Yasin timely petitions us for review.
II.
The BIA had jurisdiction under 8 C.F.R. § 1003.2 to consider Yasin's motion to reopen. The extent to which we have jurisdiction under 8 U.S.C. § 1252 to consider the BIA's denial of Yasin's motion to reopen is an open issue for our review.
We review the BIA's denial of a motion to reopen for abuse of discretion. Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). "As a general rule, motions to reopen are granted only under compelling circumstances," id. at 561, and we will not disturb the BIA's "[d]iscretionary decisions . . . unless they are found to be arbitrary, irrational, or contrary to law," id. at 562 (quoting Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994)). We conduct de novo review of the BIA's legal conclusions and consider its findings of fact under a "substantial evidence" standard. Darby v. Att'y Gen., 1 F.4th 151, 159 (3d Cir. 2021); see also Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005) (indicating that the "substantial evidence" standard "requires us to treat findings of fact as 'conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary'") (quoting 8 U.S.C. § 1252(b)(4)(B)).
III.
As a threshold matter, we must consider our own jurisdiction to review Yasin's petition. In denying Yasin's VAWA-based motion to reopen, the BIA - after recognizing
that it was filed more than 17 years after the closing of the 1-year limitations period pursuant to 8 U.S.C. § 1229a(c)(7)(C)(iv)(III) - exercised its statutorily committed discretion not to waive the limitations period. We generally lack jurisdiction to review an exercise of discretion committed by statute to the Attorney General. See 8 U.S.C. § 1252(a)(2)(B)(ii). Although we have yet to consider § 1252(a)(2)(B)(ii)'s limit on our jurisdiction in the VAWA context, we hold that our Court lacks jurisdiction to review the BIA's denial of a VAWA-based motion to reopen grounded on a determination not to waive § 1229a(c)(7)(C)(iv)(III)'s limitations period. Based on the following...
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