Abbas Ater Ali Al Khafaji v. Pamela Bondi,1 Attorney General of the United States

United States Court of Appeals
For the Eighth Circuit
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No. 23-3551
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Abbas Ater Ali Al Khafaji
Petitioner
v.
Pamela Bondi,1 Attorney General of the United States
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: November 21, 2024
Filed: February 18, 2025
[Unpublished]
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Before COLLOTON, Chief Judge, BENTON and KELLY, Circuit Judges.
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PER CURIAM.
In 2004, Nebraska convicted Abbas Ater Ali Al Khafaji of the crime of
possession of a controlled substance with intent to deliver, in violation of Neb. Rev.
Stat. § 28-416(1)(a). Then, an immigration judge ordered his removal, finding a
1 Attorney General Pamela Bondi is automatically substituted as respondent
pursuant to Federal Rule of Appellate Procedure 43(c)(2).

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conviction of the “aggravated felony” of “illicit trafficking in a controlled
substance.” 8 U.S.C. § 1101(a)(43)(B). In 2023, Khafaji moved to reopen his case,
asserting a fundamental change in law. An immigration judge denied his motion.
The Board of Immigration Appeals affirmed. Khafaji petitions this court for review.
Having jurisdiction under 8 U.S.C. § 1252(a)(1), (b), we deny the petition for
review.
The BIA may sua sponte reopen “any case in which it has rendered a
decision.” 8 C.F.R. § 1003.2(a). Parties may move to reopen proceedings based on
“material” evidence that “was not available and could not have been discovered or
presented at the former hearing.” § 1003.2(c)(1). A motion to reopen must be filed
no later than 90 days after the final administrative decision. § 1003.2(c)(2).
This court may review the BIA’s decision not to sua sponte reopen a case only
if petitioner raises a “‘colorable’ constitutional claim.” Chong Toua Vue v. Barr,
953 F.3d 1054, 1057 (8th Cir. 2020) (citing Tamenut v. Mukasey, 521 F.3d 1000,
1003–05 (8th Cir. 2008) (en banc)). Khafaji argues that the BIA violated his “due
process” rights, a constitutional claim. But he does not explain how his due process
rights were violated. See Sharif v. Barr, 965 F.3d 612, 625 n.4 (8th Cir. 2020)
(refusing to address petitioner’s due process argument because petitioner offered “no
explanation as to how the BIA’s failure to reopen proceedings on its own motion
violated his due process rights”). Khafaji “points to nothing that calls into doubt the
fundamental fairness of the procedures employed” by the BIA. Tamenut, 521 F.3d
at 1005. Instead, he proceeds directly to arguing an abuse of discretion. “[C]loaking
an abuse of discretion argument in constitutional garb” does not raise a colorable
constitutional claim. Id. This court lacks jurisdiction to review the BIA’s decision
not to sua sponte reopen Khafaji’s case.
Khafaji argues that equitable tolling should allow his motion to reopen
proceedings. He believes that two recent cases from this court, taken together, are a
“fundamental change in the law,” warranting equitable tolling. In re G–D–, 22 I. &
N. Dec. 1132, 1135 (BIA 1999). This court reviews for abuse of discretion the BIA’s

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denial of a motion to reopen. Hernandez-Moran v. Gonzales, 408 F.3d 496, 499 (8th
Cir. 2005) (citing INS v. Doherty, 502 U.S. 314, 324 (1992)). “An abuse of
discretion occurs if a decision is without rational explanation, departs from
established policies, invidiously discriminates against a particular race or group, or
where the agency fails to consider all factors presented by the alien or distorts
important aspects of the claim.” Id. Khafaji “bears the burden of making a prima
facie showing of entitlement to equitable tolling.” Id. at 500.
Here, the BIA did not abuse its discretion because the two cases Khafaji cites
are not a fundamental change in the law. He asserts that United States v. Owen, 51
F.4th 292 (8th Cir. 2022), and United States v. Myers, 56 F.4th 595 (8th Cir. 2022),
are a fundamental change in the law for determining whether a state drug statute is
divisible. But neither case changed the law for determining divisibility. Owen, 51
F.4th at 295 (assuming, “without deciding,” that a Minnesota statute was divisible,
because the outcome of the case was the same either way); Myers, 56 F.4th at 598
n.6 (noting that a case from 2021 held that the Missouri statute in question was
divisible). Owen and Myers represent “at most an incremental development in the
law, not a departure from established principles.” In re G–D–, 22 I. & N. Dec. at
1135. Khafaji has not met his burden of showing entitlement to equitable tolling.
The BIA did not abuse its discretion.
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The petition for review is denied.
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