Mosere v. Mukasey

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HAWA MOSERE, 

Petitioner,

v.  No. 08-1241

MICHAEL B. MUKASEY,

Respondent.



On Petition for Review of an

Order of the Board of Immigration Appeals.

Argued: October 29, 2008

Decided: January 12, 2009

Before WILLIAMS, Chief Judge, MICHAEL, Circuit

Judge, and John T. COPENHAVER, JR., United States

District Judge for the Southern District of West Virginia,

sitting by designation.

Petition denied in part and dismissed in part by published

opinion. Chief Judge Williams wrote the opinion, in which

Judge Michael and Judge Copenhaver joined.

COUNSEL

ARGUED: David Christopher Drake, JOHNSON & ASSO-

CIATES, P.C., Arlington, Virginia, for Petitioner. Kevin

James Conway, UNITED STATES DEPARTMENT OF JUS-

2 MOSERE v. MUKASEY

TICE, Washington, D.C., for Respondent. ON BRIEF: Ran-

dall L. Johnson, JOHNSON & ASSOCIATES, P.C.,

Arlington, Virginia, for Petitioner. Gregory G. Katsas, Acting

Assistant Attorney General, Richard M. Evans, Assistant

Director, Virginia Lum, Trial Attorney, Office of Immigration

Litigation, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Respondent.

OPINION

WILLIAMS, Chief Judge:

Hawa Fatmatta Mosere, a native and citizen of Sierra

Leone, appeals the decision of the Board of Immigration

Appeals ("BIA") denying her motion to reopen as untimely

and declining to exercise its power to reopen sua sponte.

Because Mosere filed her petition more than eleven years

after entry of the order granting her voluntary departure, we

find that the BIA did not abuse its discretion in rejecting her

motion to reopen as untimely under 8 C.F.R. § 1003.2(c)(2)

(2008). Further, because there are no meaningful standards by

which to evaluate the BIA’s decision not to exercise its power

to reopen under 8 C.F.R. § 1003.2(a), we find, in concert with

every court to have considered this issue, that we lack juris-

diction to review the BIA’s refusal to reopen Mosere’s case

sua sponte.

I.

Mosere entered the United States in 1990 on a visitor’s

visa. She overstayed this visa and was arrested on November

29, 1995 and ordered to show cause as to why she should not

be deported. At the time of her arrest, Mosere’s husband filed

an I-130 Petition for Alien Relative form on her behalf, but

admitted during an interview that the marriage was created

solely for the purpose of helping Mosere remain in the United

MOSERE v. MUKASEY 3

States. Indeed, the husband admitted that he was paid

$1,200.00 over five years for the marriage and that he had

never lived with Mosere.

On November 3, 1996, an immigration judge ("IJ") found

Mosere deportable and granted her application for voluntary

departure. The IJ required that Mosere depart before June 13,

1997, and provided that if she did not voluntarily depart, an

alternate deportation order would become immediately effec-

tive.

Mosere failed to depart, however, and remained in the U.S.

where she served as a private caretaker for an elderly woman

in the woman’s home. On December 3, 2007, more than

eleven years after the entry of the order granting her voluntary

departure, she filed a motion to reopen her removal order. In

her motion, Mosere claimed that she declined to voluntarily

depart the United States because of Sierra Leone’s civil war1

and her own medical issues.2 In support of her motion,

Mosere noted that in 2003, her son, Sarh Samuel Filo, became

a naturalized United States citizen and that on July 18, 2006,

he filed an I-130 petition on Mosere’s behalf. That petition for

an Adjustment of Status was granted on October 31, 2007.

On December 13, 2007, an IJ denied the motion to reopen

as untimely. The IJ stated that Mosere "was granted voluntary

departure until June 13, 1997 with an alternate order of

removal to Sierra Leone." (J.A. at 73.) This decision "was

accepted as final." (J.A. at 73.) The IJ also noted that even

considering the civil war in Sierra Leone, Temporary Protec-

1

Sierra Leone was embroiled in a civil war from 1991-2002. By mid-

1997, approximately one-third of Sierra Leone’s population was displaced

within the country.

2

Mosere claims to suffer from both sickle cell anemia and a heart condi-

tion that causes her pain.

4 MOSERE v. MUKASEY

tive Status for individuals from Sierra Leone ended on Sep-

tember 3, 2003.3

The BIA dismissed Mosere’s subsequent appeal, conclud-

ing that the motion to reopen was untimely and declining to

find the "extraordinary circumstances" claimed by Mosere. As

the BIA explained, "[w]e find inadequate evidence that she

was unable to depart due to illness and we find no basis for

exceptional circumstances due to the war in Sierra Leone."

(J.A. at 2.) The BIA also rejected Mosere’s claim that she was

not barred from filing for relief because sufficient time had

passed, see 8 U.S.C.A. § 1229c(d) (West 2005 & Supp. 2008)

(prohibiting individuals who decline to voluntarily depart

from filing for new relief for ten years), and reiterated that

Mosere’s motion to reopen was untimely and that it would not

use its authority to reopen sua sponte because "we do not find

that she would merit a grant of relief as a matter of discre-

tion." (J.A. at 2.) Supporting this conclusion, the BIA noted

that Mosere "fail[ed] to depart voluntarily, choosing to remain

here for more than 10 years after being ordered to deport,

[and] . . . she previously committed marriage fraud in an

attempt to remain here." (J.A. at 2.)

Mosere filed a timely petition for review, and 8 U.S.C.A.

§ 1252(a)(1) (West 2005) provides our jurisdiction. During

the pendency of the petition for review, Mosere filed a motion

for stay of deportation in our court, and the Government filed

a motion to dismiss Mosere’s petition for lack of jurisdiction.

On March 27, 2008, a panel of this court denied Mosere’s

motion for stay and delayed action on the Government’s

motion to dismiss. On April 29, 2008, Mosere’s motion for

reconsideration was denied. After hearing oral argument, we

3

Temporary Protected Status is a temporary immigration status granted

to citizens of designated countries who are temporarily unable to safely

return to their home country because of ongoing armed conflict, an envi-

ronmental disaster, or other extraordinary and temporary conditions. 8

U.S.C.A. § 1254a (West 2005).

MOSERE v. MUKASEY 5

now conclude both that the BIA did not abuse its discretion

in determining that Mosere’s motion to reopen was untimely

and that we lack jurisdiction to review the BIA’s refusal to

exercise its power to reopen sua sponte. We address each

issue in turn.

II.

A.

Mosere first contends that the BIA erred by concluding that

her motion to reopen was untimely.4 We review the denial of

a motion to reopen for an abuse of discretion. INS v. Doherty,

502 U.S. 314, 323 (1992); Stewart v. U.S. INS, 181 F.3d 587,

595 (4th Cir. 1999). Motions to reopen "are disfavored . . .

[because] every delay works to the advantage of the deport-

able alien who wishes merely to remain in the United States."

Doherty, 502 U.S. at 323. We thus reverse the BIA’s decision

only if it is "arbitrary, irrational, or contrary to law." Sevoian

v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002).

By regulation, a motion to reopen "must be filed no later

than 90 days" after the date on which the administrative deci-

sion at issue becomes final. 8 C.F.R. § 1003.2(c)(2) (emphasis

added). Given the clear language, it is impossible for us to say

that the BIA abused its discretion in finding Mosere’s motion,

filed more than eleven years after the order of voluntary

departure, untimely. Finding no abuse of discretion, we affirm

the BIA’s denial of Mosere’s motion to reopen as untimely.

B.

Mosere next alleges that the BIA erred by declining to

4

Mosere also argues that the BIA erroneously concluded that she was

time-barred under 8 U.S.C.A. § 1229c(d) (West 2005 & Supp. 2008).

Because we can affirm the BIA’s decision based on its alternative holding

that Mosere’s motion was untimely, we do not address this argument.

6 MOSERE v. MUKASEY

exercise its discretionary power to sua sponte reopen

Mosere’s asylum application for extraordinary circumstances.

Every circuit that has considered this issue has determined

that the BIA’s decision whether to exercise its power to

reopen sua sponte is unreviewable because there are no mean-

ingful standards for courts to apply in review. Tamenut v.

Mukasey, 521 F.3d 1000, 1004-05 (8th Cir. 2008) (en banc)

(per curiam); Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.

2006); Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249-50

(5th Cir. 2004); Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir.

2003); Belay-Gebru v. INS, 327 F.3d 998, 1000-01 (10th Cir.

2003); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d

Cir. 2003); Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.

2002); Luis v. INS, 196 F.3d 36, 40-41 (1st Cir. 1999); Anin

v. Reno, 188 F.3d 1273, 1279 (11th Cir. 1999). We have

reached the same decision in a prior unpublished opinion,

Doh v. Gonzales, 193 F. App’x 245, 246 (4th Cir. 2006) (per

curiam), and we reaffirm that holding today.

Section 1003.2(a) provides that the BIA "may" reopen on

its own motion, but it "provides no guidance as to the BIA’s

appropriate course of action, sets forth no factors . . ., places

no constraints on the BIA’s discretion, and specifies no stan-

dards for a court to use to cabin the BIA’s discretion."

Tamenut, 521 F.3d at 1004. While the BIA has indicated it

will exercise its power to reopen sua sponte in the presence

of exceptional circumstances, "the mere fact that the BIA has

acknowledged the existence of its authority to reopen sua

sponte in what it deems to be ‘exceptional situations’ is not

sufficient to establish a meaningful standard for judging

whether the BIA is required to reopen proceedings on its own

motion." Tamenut, 521 F.3d at 1005 (emphasis in original).

Because there are no meaningful standards by which to judge

the BIA’s exercise of its discretion, we find that we lack juris-

diction to review its refusal to sua sponte reopen Mosere’s

case.

MOSERE v. MUKASEY 7

III.

For the foregoing reasons, we deny the petition for review

in part and dismiss it in part.

PETITION DENIED IN PART

AND DISMISSED IN PART