Kalvin Loyd v. James Corwin

United States Court of Appeals
For the Eighth Circuit
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No. 14-2858
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Masereh Njie, also known as Masereh Jallow
lllllllllllllllllllllPetitioner
v.
Loretta E. Lynch1
lllllllllllllllllllllRespondent
___________________________
No. 14-2862
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Alieu Sireh Jallow
lllllllllllllllllllllPetitioner
v.
Loretta E. Lynch
lllllllllllllllllllllRespondent
____________
Petition for Review of an Order of the
Board of Immigration Appeals
____________
Loretta E. Lynch is automatically substituted for Eric H. Holder, Jr., pursuant1
to Federal Rule of Appellate Procedure 43(c)(2).

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Submitted: September 22, 2015
Filed: December 11, 2015
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Before WOLLMAN, COLLOTON, and KELLY, Circuit Judges.
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WOLLMAN, Circuit Judge.
Masereh Njie and Alieu Sireh Jallow petition for review of the orders of the
Board of Immigration Appeals (BIA) affirming the denial of their applications for
waiver of inadmissibility and denying their motions to remand. We dismiss the
petitions to the extent they seek review of the discretionary decision to deny the
applications for waiver. We otherwise deny the petitions.
I. Background
Njie and Jallow are natives and citizens of the Gambia. They entered the
United States in May 2002 and August 2005, respectively. Njie married a United
States citizen in December 2005 and divorced him in August 2010. Jallow married
a United States citizen in January 2007. His marriage ended in divorce in June 2009.
Both Njie and Jallow obtained immigration benefits based on those marriages.
Njie and Jallow met in the United States and entered into a romantic
relationship in March or April 2006. They have two children together, ages 8 and 6,
both of whom were born in the United States. Njie and Jallow were married in May
2013. For clarity, we will continue to refer to Masereh Jallow by her maiden name,
Njie.
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In February 2011, the Department of Homeland Security (DHS) initiated
separate removal proceedings against Njie and Jallow, alleging that they had
attempted to procure immigration benefits through fraud or willful misrepresentation.
Njie and Jallow conceded removability and applied for waiver of inadmissibility
under section 237(a)(1)(H) of the Immigration and Nationality Act (the Act), 8 U.S.C.
§ 1227(a)(1)(H).
An immigration judge (IJ) held a hearing, during which he received evidence
and heard testimony. He thereafter issued separate written decisions denying Njie’s
and Jallow’s applications for waiver of inadmissibility. The IJ found that Njie and
Jallow were not credible witnesses. Moreover, he found that they had entered into
sham marriages with United States citizens to gain immigration benefits and that they
had denied any wrongdoing, even after being confronted with evidence of their
fraudulent conduct. In deciding whether to waive inadmissibility, the IJ also
considered Njie and Jallow’s positive attributes, including that they had lived in the
United States for many years and were rearing two children who were U.S. citizens.
Given the totality of the circumstances, however, the IJ concluded that Njie and
Jallow had “failed to establish that [they] merit[] section 237(a)(1)(H) waiver[s] in the
exercise of discretion.” Njie and Jallow appealed the adverse decisions to the BIA.
Njie and Jallow married each other while their appeals were pending.
Thereafter, they moved to remand their cases so that they could seek asylum in light
of letters they received in January 2014 from relatives living in the Gambia. They
argued that the letters constituted newly discovered evidence and that their motions
to remand thus met the statutory and regulatory requirements for reopening
proceedings. See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c). Njie and Jallow
submitted the letters, Njie’s completed asylum application, and other supporting
documentation as exhibits to the motions.
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In separate letters, Njie’s mother and sister wrote that Njie would be
recircumcised if she were to return to the Gambia. The letters stated that clan elders
had decided to recircumcise Njie because she had married Jallow, who was from an
inferior tribe. Recircumcision would prepare Njie to marry a man from her own tribe,
who already had been chosen for her. Njie’s asylum application listed Jallow as a
derivative beneficiary and stated that Njie would be recircumcised because she had
had children with Jallow. Njie reported in a personal statement that she had been
subjected to female genital mutilation (FGM) when she was a child. She explained
in a letter that she had broken tradition by entering into a relationship with Jallow
without the permission of clan elders and that recircumcision would serve as
punishment for marrying him. An unsworn, electronically signed medical record
stated that Njie had undergone a pelvic exam and that her “[c]litoris [was] not found
upon inspection. Prepuce absent. Flattened tissue with small scar like line where
anterior labia minora would be expected.”
The BIA dismissed the appeals and denied the motions to remand. It affirmed
the IJ’s denial of the applications for waiver of inadmissibility, stating that “[w]hile
the respondent[s’] equitable considerations are substantial, we nonetheless agree with
the Immigration Judge that these considerations are outweighed by . . . negative
factors and that a favorable exercise of discretion under section 237(a)(1)(H) of the
Act is not warranted.” The BIA denied the motions to remand on three grounds. It2
concluded that Njie and Jallow had failed to establish changed circumstances that
would allow the IJ to consider Njie’s otherwise untimely asylum application. See 8
U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 1208.4(a)(4)(i)(A)-(B). Further, the BIA
determined that Njie and Jallow had failed to show that the information set forth in
the letters was previously unavailable. See 8 C.F.R. § 1003.2(c)(1). Finally, “[g]iven
The IJ also had determined that Njie and Jallow were statutorily ineligible for2
waiver of inadmissibility. The BIA did not address that determination and instead
affirmed the IJ’s discretionary denial of the respondents’ applications for waiver.
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the respondent[s’] lack of credibility and [their] attempts to defraud immigration
officials, [the BIA was] unable to conclude that the respondent[s] ha[ve]
demonstrated prima facie eligibility for relief to warrant remand.” In their
consolidated appeal, Njie and Jallow argue that the BIA abused its discretion in
dismissing their appeals and in denying their motions to remand.
II. Discussion
A. Denial of Waiver of Inadmissibility
An alien who procures a visa, other documentation, or admission into the
United States through “fraud or willfully misrepresenting a material fact” is
inadmissible. 8 U.S.C. § 1182(a)(6)(C)(i). The Attorney General has discretion to
waive this ground of inadmissibility for an alien who “is the spouse, parent, son, or
daughter of a citizen of the United States,” so long as the alien meets certain
requirements. Id. § 1227(a)(1)(H). We lack jurisdiction to review the discretionary
denial of waiver of inadmissibility under this provision. See id. §§ 1227(a)(1)(H),
1252(a)(2)(B)(ii). We do, however, have jurisdiction to review constitutional claims
or questions of law raised in a petition for judicial review from the denial of waiver.
See id. § 1252(a)(2)(D).
Njie and Jallow contend that the IJ required them to show that their removal
would cause their children to suffer hardship, even though § 1227(a)(1)(H) does not
require such a showing. They claim that this additional requirement constituted an
error of law, which the BIA failed to address on appeal. Our review of the IJ’s
decision reveals that he did not require a hardship showing. Instead, in deciding
whether to grant the applications for waiver, the IJ mentioned that Njie and Jallow
had not shown that their removal would cause their children to suffer hardship. The
IJ weighed this factor, along with several others, when he decided to deny the
applications for waiver. Although Njie and Jallow have argued that the IJ committed
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legal error, they in effect are challenging the IJ’s weighing of the evidence and his
subsequent decision that they “failed to establish that [they] merit[] section
237(a)(1)(H) waiver[s].” As explained above, we do not have jurisdiction to review
the discretionary denial of waiver of inadmissibility.
B. Motions To Remand
Njie and Jallow argue that the BIA abused its discretion in denying their
motions to remand. See Clifton v. Holder, 598 F.3d 486, 490 (8th Cir. 2010)
(standard of review). “[W]here a motion to remand is really in the nature of a motion
to reopen or a motion to reconsider, it must comply with the substantive requirements
for such motions.” Matter of Coelho, 20 I. & N. Dec. 464, 472 (BIA 1992). When
Njie and Jallow moved the BIA to remand their cases to the IJ, they sought to reopen
their removal proceedings so that the IJ could consider Njie’s application for asylum
and supporting documentation. Accordingly, they were required to meet the
substantive requirements of a motion to reopen proceedings. See id.
A motion to reopen proceedings must “state the new facts that will be proven
at a hearing to be held if the motion is granted” and “be supported by affidavits or
other evidentiary material.” 8 C.F.R. § 1003.2(c)(1). Motions to reopen are
disfavored in removal proceedings, “where, as a general matter, every delay works
to the advantage of the deportable alien who wishes merely to remain in the United
States.” INS v. Doherty, 502 U.S. 314, 323 (1992). Accordingly, the movant bears
a heavy burden to establish that proceedings should be reopened. INS v. Abudu, 485
U.S. 94, 110 (1988).
Our review of the BIA’s denial of a motion to reopen is deferential. The
Supreme Court has recognized “at least three independent grounds on which the BIA
may deny a motion to reopen: (1) failure by the movant to establish a prima facie
case for the underlying substantive relief sought; (2) failure by the movant to
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introduce previously unavailable, material evidence; or (3) a determination [that] the
movant would not be entitled to the discretionary relief sought.” Poniman v.
Gonzales, 481 F.3d 1008, 1011 (8th Cir. 2007) (citing Abudu, 485 U.S. at 104-05).
Njie and Jallow argue that the BIA erred when it concluded as a threshold
matter that Njie’s asylum application would be rejected as untimely because of her
failure to show changed circumstances that would excuse the one-year deadline for
applying for asylum. See 8 U.S.C. § 1158(a)(2)(B), (D). The BIA concluded that
Njie and Jallow’s marriage constituted merely a change in personal circumstances,
not a change in country conditions, and that the marriage “was not a changed
circumstance materially affecting the respondent[s’] eligibility for relief.” See 8
C.F.R. § 1208.4(a)(4)(i) (defining the term “changed circumstances” as used in 8
U.S.C. § 1158(a)(2)(D)).
There is no real dispute that Njie and Jallow’s marriage constitutes a change
in personal circumstances. See Zheng v. Mukasey, 523 F.3d 893, 895 (8th Cir. 2008).
Njie and Jallow contend, however, that the BIA mischaracterized their argument.
They argue that the BIA should have considered the letters from Njie’s sister and
mother as evidence of changed country conditions and that the letters establish that
Njie’s tribe had instituted a practice of recircumcising women who marry men from
an inferior tribe. This practice, according to Njie and Jallow, constitutes a changed
country condition and excuses the one-year time limit for filing an asylum
application. Njie and Jallow first raised this argument in their replies to the DHS’s
opposition to the motions to remand. Accordingly, although we doubt that the BIA
erred in considering Njie’s asylum application as being based on changed personal
circumstances and thus untimely, even if it did, it nonetheless acted within its
discretion when it denied the motions to remand on other grounds.
As set forth above, the BIA may deny a motion to reopen if the movant fails to
establish a prima facie case for the underlying substantive relief sought. To qualify
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for asylum, an applicant must demonstrate that she is unwilling or unable to return
to her home country “because of persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. § 1101(a)(42)(A). Accordingly, an applicant may qualify
either because she has suffered past persecution or because she has a well-founded
fear of future persecution. A well-founded fear of future persecution must be both
subjectively genuine and objectively reasonable. Feleke v. INS, 118 F.3d 594, 598
(8th Cir. 1997). Both components must be proved by credible evidence:
“Subjectively, the alien must demonstrate with credible evidence that [s]he genuinely
fears persecution; objectively, [s]he must demonstrate through credible, direct, and
specific evidence that a reasonable person in [her] position would fear persecution.”
Id.
Njie and Jallow argue that the letters from Njie’s mother and sister establish
Njie’s well-founded fear of future persecution. The BIA did not abuse its discretion
in rejecting that argument, however, “[g]iven respondent[s’] lack of credibility and
[their] attempts to defraud immigration officials.” The IJ found that Njie and Jallow
had omitted material information and submitted false information to obtain
immigration benefits; that they had altered lease documents to corroborate their sham
marriages to U.S. citizens; that they “continued to disavow any wrongdoing in the
face of . . . obvious fraud”; and that Njie had made false statements under oath during
the naturalization process. In light of the extent of their marriage fraud scheme, the
frequency with which Njie and Jallow submitted untruthful information, and their
history of forging documents, the BIA did not abuse its discretion in requiring more
than unsworn letters from Njie’s family members to establish Njie’s prima facie
eligibility for asylum.
Njie and Jallow argued in their reply brief and at oral argument that the BIA
is not permitted to impute the adverse credibility finding from their removal
proceedings to the evidence in support of Njie’s asylum application. They contend
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that, under Hassan v. Gonzales, 484 F.3d 513 (8th Cir. 2007), credibility issues are
treated differently in cases involving FGM and that their cases must be remanded so
that the IJ can determine whether Njie has established a well-founded fear of
recircumcision. We disagree.
In Hassan, the petitioner sought asylum, claiming that she would be subjected
to persecution because she had married a man from a different tribe and that she was
entitled to asylum because she previously had been subjected to FGM. Id. at 515.
The IJ concluded that the petitioner’s interclan marriage claim lacked credibility and
that the petitioner was not entitled to asylum based upon the fact that she had
undergone FGM. Id. at 515-16. On appeal, we held that a petitioner who has
undergone FGM is entitled to a presumption of past persecution, and we rejected the
government’s argument that the IJ’s adverse credibility finding on the interclan
marriage claim rebutted this presumption. Id. at 517-18. Because the petitioner’s
evidence regarding FGM was unrebutted, we remanded the case for further
proceedings. Id. at 518-19.
Hassan involved a direct appeal from the denial of an asylum application that
alleged a well-founded fear of persecution based upon the petitioner’s past FGM
experience. This case, however, involves an appeal from the denial of motions to
remand to have removal proceedings reopened. The asylum claim alleged in these
motions was not based on Njie’s past persecution. Indeed, the BIA would have
denied such motions for failure to present previously unavailable, material evidence.
See 8 C.F.R. § 1003.2(c)(1) (stating that a motion to reopen will not be granted unless
the evidence “was not available and could not have been discovered or presented at
the former hearing”); see also id. (stating that a motion to reopen shall not be granted
for the purpose of allowing the alien to apply for discretionary relief, like asylum, if
it appears that the petitioner had notice and an opportunity to apply at the previous
hearing, “unless the relief is sought on the basis of circumstances that have arisen
subsequent to the hearing”). Instead, Njie and Jallow have based the asylum claim
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on fear of future persecution, arguing that “[t]he evidence provided in the letters . . .
confirms a new tribal practice of re-circumcision . . . and therefore establishes a prima
facie case for asylum.” Appellants’ Br. 25. Although “[a]n adverse credibility
finding on one claim does not necessarily defeat other claims,” R.K.N. v. Holder, 701
F.3d 535, 538 (8th Cir. 2012), Hassan does not require reversal here, where the case
stands in a much different procedural posture and the asylum claim is based on
different grounds. Because Njie and Jallow engaged in an extensive fraudulent
scheme, the BIA did not abuse its discretion in determining that the evidence they
presented was not credible and thus did not establish Njie’s prima facie eligibility for
asylum.
Finally, we find no abuse of discretion in the BIA’s determination that the
information contained in the letters was not previously unavailable. Although Njie
and Jallow may not have received the letters until January 2014, they failed to show
that the alleged tribal practice of recircumcision “could not by the exercise of due
diligence have been discovered earlier.” Matter of Coelho, 20 I.& N. Dec. at 474 n.4
(quoting Taylor v. Illinois, 484 U.S. 400, 414 n.18 (1988)).
III. Conclusion
We dismiss the petitions to the extent they seek review of the discretionary
decision to deny the applications for waiver. We otherwise deny the petitions.
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