Motions to Reopen and Reconsider Not Distinguished by Title
The procedural history, facts of record, holding and rationale in Josue Esteban Cardona-Franco v. Garland (May 24, 2022) No. 19-60789 are as follows:
Case History
An Immigration Judge sustained the removal charge brought by the Department of Homeland Security (“DHS”).
The Petitioner applied for asylum and withholding of removal.
The United States Citizenship and Immigration Services (“USCIS”) found the Petitioner ineligible for asylum and referred his case to an Immigration Judge.
The Immigration Judge denied the Petitioner’s relief applications.
The Petitioner then appealed to the Board of Immigration Appeals (“BIA”).
Ultimately, the BIA affirmed the Immigration Judge’s decision.
The Petitioner filed a petition for review.
On the same day, the Petitioner filed a motion to reconsider with the BIA.
The BIA rejected the Petitioner’s motion to reconsider.
The Petitioner corrected his motion to reconsider and refiled it nine days late, along with a motion to accept the late filing.
The BIA denied the Petitioner’s motion to reconsider.
The Petitioner filed a second petition for review, challenging the BIA’s denial of his motion to reconsider.
Facts
The Petitioner is a native and citizen of El Salvador who admitted entering the United States illegally in November 2015.
After an Immigration Judge determined that the Petitioner is subject to removal under section 212(a)(6)(A)(i) of the Immigration and Nationality Act, as amended (“the Act”) (an alien who is present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than designated by the Attorney General), he applied for asylum and withholding of removal in January 2018. See sections 208 and 241(b)(3) of the Act, respectively.
The Petitioner supported his asylum and withholding of removal applications with claims that he had been targeted by gangs for his religious activities.
In May 2018, upon determining that the Petitioner was not eligible for asylum, the USCIS referred his case to an Immigration Judge.
At hearings in February and March 2019, the Petitioner testified about his evangelizing activities and incidents of gang persecution. The respondent’s sister also testified.
The Immigration Judge found neither the Petitioner nor his sister credible and denied the Petitioner’s asylum and withholding of removal applications. Alternatively, the Immigration Judge concluded that the Petitioner failed to show he had suffered, or had a well-founded fear of, religious persecution and also denied relief based on the theory of past persecution alone (aka “humanitarian asylum”).
The Petitioner filed an appeal with the BIA along with new evidence, including copies of two USCIS letters concerning his brother’s September 2018 grant of asylum.
The BIA declined to consider the new evidence and dismissed the Petitioner’s appeal. The BIA reasoned that, even construing the Petitioner’s submission of new evidence as a motion to remand to consider new evidence, the Petitioner failed to show that he could not have submitted the evidence to the Immigration Judge or that it would likely change the outcome. See 8 C.F.R. § 1003.23(b)(3).
The BIA also affirmed the Immigration Judge’s adverse credibility finding.
On October 21, 2019, when the Petitioner filed his first petition for review, he also filed a motion to reconsider with the BIA raising various issues and included the new evidence that had been filed with his appeal to the BIA.
On or about October 23, 2019, the BIA notified the Petitioner that his motion had been rejected and was being returned for correction because it did not include either the required fee or a fee-waiver request. See 8 C.F.R. §§ 1003.24(b)(1), 1003.8 and 1103.7(b)(2).
Although the BIA clarified that rejection of the Petitioner’s motion does not extend the original time limit for filing the motion, the Petitioner refiled his motion to reconsider nine days late, along with a motion to accept the late filing.
The BIA denied the Petitioner’s motion to reconsider as untimely, and alternatively reaffirmed the Immigration Judge’s decision which concluded that the Petitioner had shown no error and also that the “new” evidence about his brother’s asylum grant would not likely change the outcome.
On May 11, 2020, the Petitioner timely filed a second petition for review challenging the BIA’s denial of his motion to reconsider.
Held:
Both Petitions For Review Denied
Rationale:
First Petition For Review
In his first petition for review, the Petitioner raised three challenges to the denial of his relief applications:
- The BIA erred by not taking notice of the agency decision granting his brother’s asylum application. If the BIA had done so it would have ruled that treating his application differently was "arbitrary and capricious."
- During his hearing, the Immigration Judge functioned as an adversary, not as a neutral arbiter. Thus, Immigration Judge’s bias denied him due process.
- The Immigration Judge placed “outsized importance” on conflicting testimony and dates, which should be characterized as “minor details.” Thus, the BIA erred in affirming the Immigration Judge’s adverse credibility determination.
The Fifth Circuit Court of Appeal reasoned as follows:
- The Petitioner raised the argument concerning his brother’s asylum grant for the first time in his motion to reconsider. He did not raise the argument initially before the BIA, despite the fact that he was in possession of the pertinent documents. Therefore, he failed to exhaust the argument. See Omari v. Holder, 562 F.3d 314, at 319 (5th Cir. 2009) (“[A]n issue raised for the first time in a motion for reconsideration that could have been raised earlier has not been properly presented to the BIA” and therefore “does not satisfy § 1252(d)’s exhaustion requirement.”). See section 242(d) of the Act.
- Due process is denied if an Immigration Judge reveals “such pervasive bias and prejudice . . . by otherwise judicial conduct as would constitute bias against a party.” Matter of Exame, 18 I & N Dec. 303, at 306 (BIA 1982).
- However, an Immigration Judge’s conduct at a hearing is “very rare[ly]” evidence of bias—only when an Immigration Judge’s “hostility [is] due to extrajudicial sources” or the Immigration Judge shows “a deep-seated favoritism or antagonism that would make fair judgment impossible.” Wang v. Holder, 569 F.3d 531, at 540-41 (5th Cir. 2009) (citing Liteky v. United States, 510 U.S. 540, at 555 (1994).
- “[D]isplays of temper” like “expressions of impatience, dissatisfaction, annoyance and even anger” are not themselves evidence of bias. Wang v. Holder (quoting Liteky, 510 U.S. at 555–56).
- An Immigration Judge is authorized to interrogate, examine, and cross-examine an applicant. See section 240(b)(1) of the Act; Calderon Ontiveros v. INS, 809 F.2d 1050, at 1052 n.1 (5th Cir. 1986).
- Although the Immigration Judge asked many questions, it does not show “obvious bias.” See Wang v. Holder, 569 F.3d at 540–41 (remarks during trial ordinarily not evidence of bias).
- In short, the Petitioner did not point to record evidence showing the Immigration Judge’s “hostility due to extrajudicial sources” or “a deep-seated favoritism or antagonism that would make fair judgment impossible.” Wang v. Holder, 569 F.3d at 540–41.
- Therefore, no basis exists for disturbing the BIA’s rejection of the Petitioner’s due process claim. Singh v. Garland, 20 F.4th 1049, at 1055 (5th Cir. 2021).
- An Immigration Judge may assess credibility based on inconsistencies between an applicant’s testimony and prior statements, even if they do not go to the heart of an applicant’s claim. Ghotra v. Whitaker, 912 F.3d 284, at 289 (5th Cir. 2019) (noting great discretion afforded to IJs in making credibility calls); Wang v. Holder, 69 F.3d at 538–39. “Neither an IJ nor the BIA is required to accept a petitioner’s ‘explanation for the plain inconsistencies in [his] story.’” Morales v. Sessions, 860 F.3d 812, at 817 (5th Cir. 2017). The Immigration Judge’s overall credibility determination will be upheld even where the court “doubt[s] the propriety of some of the credibility findings . . . [if] the outcome would not differ had the IJ not considered [the other credibility findings].” Avelar-Oliva v. Barr, 954 F.3d 757, at 767 (5th Cir. 2020) (citation omitted); see also Majd v. Gonzales, 446 F.3d 590, at 594 (5th Cir. 2006).
- The Immigration Judge cited specific inconsistencies and identified crucial omissions in statements by the Petitioner and his sister and in the letters he provided.
- Therefore, the evidence does not compel the conclusion that the Immigration Judge’s negative credibility determinations were wrong.
Josue Esteban Cardona-Franco v. Garland, at pp. 4-7 (May 24, 2022) No. 19-60789.
Second Petition For Review
In his second petition for review, the Petitioner asserts that the BIA erred in denying his motion to reconsider which, in part, asked the BIA to consider new evidence.
The Fifth Circuit Court of Appeal reasoned as follows:
- In distinguishing between a motion to reconsider and a motion to reopen, the substance of the motion must govern the distinction, not its label. Zhao v. Gonzales, 404 F.3d 295, at 301 (5th Cir. 2005).
- Insofar as the Petitioner’s motion was a “motion to reconsider” it was untimely. The motion was initially rejected for lack of a filing fee or fee waiver and was not refiled until after lapse of the 30-day filing period. See section 240(c)(6)(B) of the Act. The Petitioner challenged the BIA's untimeliness determination only in a footnote. Therefore, the Petitioner has waived any error. See Arbuckle Mountain Ranch of Tex., Inc. v. Chesapeake Energy Corp., 810 F.3d 335, at 339 n.4 (5th Cir. 2016). In any event, the Petitioner provided no meaningful argument as to why the BIA abused its discretion in concluding his “motion to reconsider” was untimely.
- Insofar as the Petitioner’s motion was a “motion to reopen” it was timely filed within the 90-day filing period. See section 240(c)(7)(C)(i) of the Act.
- To prevail in a challenge to a decision declining to reopen, the Petitioner must show the BIA abused its discretion. Mendias-Mendoza v. Sessions, 877 F.3d 223, at 226 (5th Cir. 2017).
- Under the “highly deferential” standard of review relating to abuse of discretion, an appellate court “must affirm the BIA’s decision as long as it is not capricious, without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach.” Hernandez v. Lynch, 825 F.3d 266, at 268 (5th Cir. 2016).
- A motion to reopen must present new facts that are “‘material’ and of the sort that ‘could not have been discovered or presented at the former hearing.’” Dada v. Mukasey, 554 U.S. 1, at 14 (2008) (quoting 8 C.F.R. § 1003.2(c)(1)).
- Even assuming the Petitioner’s brother’s asylum letter could not have been presented in time to be considered at the Petitioner’s hearing, the BIA correctly explained that this “new” evidence would not have changed the outcome of his case.
- Therefore, the Petitioner failed to show that the BIA abused its discretion under the “highly deferential” standard applicable to motions to reopen.
Commentary
By mislabeling his motion to reopen as a motion to reconsider, the Petitioner lost the opportunity for the first and second bite at the apple. The BIA did not consider the Petitioner’s argument that treating his asylum application differently than his brother’s asylum application (which was granted) was arbitrary and capricious because the Petitioner offered evidence of his brother’s asylum grant for the first time in his untimely motion to reconsider.
The Petitioner’s opportunity at the second bite at the apple was lost when the Fifth Circuit Court of Appeal deemed his argument based on the grant of his brother’s asylum application unexhausted because it was raised for the first time in a motion to reconsider. See Omari v. Holder, 562 F.3d 314, at 319 (5th Cir. 2009) (“[A]n issue raised for the first time in a motion for reconsideration that could have been raised earlier has not been properly presented to the BIA” and therefore “does not satisfy § 1252(d)’s exhaustion requirement”). See section 242(d) of the Act.
Also, by isolating his opposition to the BIA’s untimeliness determination in a footnote, the Petitioner lost his opportunity to challenge it before the Fifth Circuit Court of Appeal which deemed the Petitioner’s opposition waived. See Arbuckle Mountain Ranch of Tex., Inc. v. Chesapeake Energy Corp., 810 F.3d 335, at 339 n.4 (5th Cir. 2016). Josue Esteban Cardona-Franco v. Garland, at p. 8 (May 24, 2022) No. 19-60789.
Hind sight is 20/20 and it is easy to find past mistakes. It is often possible to learn a good lesson from a bad experience if you think about the experience with the purpose of finding it. No criticism of any party’s competency or professional proficiency is intended. It seems that almost anything can go wrong while maneuvering in the hazardous jungle of appellate review.
On rare occasions during my time of service as an Immigration Judge, a party would point out that the DHS asylum unit had granted asylum to a family member. In my view, the grant of asylum to a different individual by another decision maker based on facts outside of my record of proceedings is not relevant to my decision in the case before me. There are many variable legal criteria subject to interpretation and facts subject to evaluation that inform a decision to grant or deny an asylum application. Personal relationships between asylum applicants, without more, cannot dictate uniform outcomes of individual asylum applications.
For example, if the person who is the target of forcible recruitment filed an asylum application the forcible recruitment motive of the persecutor would not qualify the recruitment target for asylum, even if the recruitment target was or will be actually threatened and harmed. According to the United States Supreme Court, forcible recruitment of a person for the purpose increasing ranks of fighters to carry out a war with the government is not persecution. INS v. Zacarias, 570 U.S. 478 (1992).
As established in INS v. Zacarias, the persecutor’s forcible recruitment motive does not align with a protected ground (i.e. race, religion, nationality, membership in a particular social group, or political opinion).
The Fourth Circuit Court of Appeal simply asks “why [the applicant], and not another person, was threatened” or harmed. Alvarez Lagos v. Barr, 927 F.3d 236, at 250 (4th Cir. 2019). Application of the Fourth Circuit standard allows any threatened or harmed relative of the recruitment target to legally qualify for asylum. Every family member, except the person targeted for recruitment, would have a pathway to asylum.
Seems like an odd result to me. Based on the REAL ID Act, codified at section 208(b)(1)(B)(i) of the Act, a majority of appellate courts seem to hold as an absolute requirement that a persecutor must target a person on account of a protected ground, as at least one central reason, even when other motives exist.
Hopefully, readers will excuse my apparently needless meander into the weeds of asylum law. A voice of caution inside my head is warning that I have wandered to a place beyond the scope of my original subject that opens to a vista on terrain which would require more time and effort to methodically traverse without losing many readers along the way, who are interested in my original subject.
Turning to motions to reopen and motions to reconsider, Congress used the following language to establish motions to reconsider and motions to reopen relating to immigration proceedings:
Motions to Reconsider
- In General
The alien may file one motion to reconsider a decision that the alien is removable from the United States.
- Deadline
The motion must be filed within 30 days of the date of entry of a final administrative order of removal.
- Contents
The motion shall specify the errors of law or fact in the previous order and shall be supported by pertinent authority.
See section 240(c)(6) of the Act.
Motions to Reopen
- In General
An alien may file one motion to reopen proceedings under this section, except that this limitation shall not apply so as to prevent filing of one motion to reopen described in subparagraph (C)(iv).
- Contents
The motion to reopen shall state the new facts that will be proven at a hearing to be held if the motion is granted, and shall be supported by affidavits or other evidentiary material.
- Deadline
- In General
Except as provided in this subparagraph, the motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal.
See section 240(c)(7) of the Act.
Subparagraph “(C)(iv)” referenced in section 240(c)(7)(A) of the Act relates to an exception to any limitation on deadlines for battered spouses, children and parents. Obviously, this subparagraph is not relevant to the Petition for Review discussed above.
In the somewhat organized chaos and the ground level fog of battle in which immigration courts function (as opposed to the sky high altitude with a clear vista where appellate courts well-staffed with law clerks abide and the United States Supreme Court distinctly glistens on the horizon), Immigration Judges often rely on rules of thumb derived from laws and regulations as interpreted by established well known BIA decisions and sometimes well-known appellate court decisions.
In their ground level environment described above, Immigration Judges evaluate motions to reopen and motions to reconsider using the following standards.
Motions to reopen are distinct from motions to reconsider. Matter of Cerna, 20 I&N Dec. 399 (BIA 1991). A motion to reopen seeks an opportunity to present new evidence so that a new decision can be entered based on a new factual record. See 8 C.F.R. § 1003.23(b)(3). Matter of Cerna, supra.
A motion to reconsider addresses error made at the time the original decision is rendered and seeks re-examination of the original factual record in the light of new law or new legal arguments. See 8 C.F.R. § 1003.23(b)(2). Matter of Cerna, supra.
On more than one occasion during my time as an Immigration Judge, I have witnessed motions to reconsider labeled as motions to reopen and vice versa. Regardless of how a motion was labeled, however, I would address it according to the nature of the motion (i.e. based on what the moving party was seeking).
Regulations regarding motions to reopen are framed negatively and authorize reopening only when minimum conditions are met. INS v. Wang, 450 U.S. 139 (1981). See also INS v. Abudu, 485 U.S. 94 (1988).
An immigration practitioner should keep the distinction between motions to reconsider and motions to reopen in mind, especially since motions to reopen have the dubious honor of being described as “disfavored.” Fredy Omar Gonzalez Hernandez, also known as Fredy Omar Gonzalez v. Garland, at 8 (5th Cir. August 13, 2021) No. 19-60274.
In short, immigration law practitioners need to remember at least three precepts articulated in Fredy Omar Gonzalez Hernandez v. Garland:
- for now in the jurisdiction of the Fifth Circuit Court of Appeal, a change in law will not justify a motion to reopen;
- the deadline for filing a motion to reconsider is within 30 days from the date of entry of a final administrative order of removal; and
- the deadline for filing a motion to reopen is within 90 days of the date of entry of a final administrative order of removal.
A practical mechanic to remember about motions to reconsider and motions to reopen, especially for procrastinators, is how deadlines are calculated:
[T]he day the Immigration Judge renders an oral decision or mails a written decision counts as "day 0." The following day counts as "day 1." Statutory and regulatory deadlines are calculated using calendar days. Therefore, Saturdays, Sundays, and legal holidays are counted. If, however, a statutory or regulatory deadline falls on a Saturday, Sunday, or legal holiday, the deadline is construed to fall on the next business day.
See section 3.1(c)(ii)(D) of the Immigration Court Practice manual.
Finally, don’t count on appellate review of a decision denying a motion to reconsider or motion to reopen sua sponte (i.e. legalese meaning by spontaneous self-urging or recommendation). In response to the petitioner’s assertion of equal protection violation in Fredy Omar Gonzalez Hernandez, also known as Fredy Omar Gonzalez v. Garland, at 12, the Fifth Circuit Court of Appeal stated:
To the extent that Gonzalez Hernandez argues the BIA should have granted relief sua sponte, regardless of the timing issue, this court is unable to review such a discretionary determination. Altamirano-Lopez v. Gonzales, 435 F.3d 547, at 550 (5th Cir. 2006) (“[T]he denial of discretionary relief does not rise to the level of a constitutional violation even if [the moving party] had been eligible for it.”)
For those who are new to motion practice in immigration proceedings, an Immigration Judge and the BIA can sua sponte reconsider any order or disposition or reopen any proceeding that the respective decision maker issued or concluded. See 8 C.F.R. §§ 1003.23(b) and 1003.2(a).
The exercise of sua sponte authority, however, is purely discretionary. Therefore, appellate courts decline to review motion denials issued in the exercise of sua sponte authority. See Heckler v. Chaney, 470 U.S. 821m at 830 (1985) ("[R]eview is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion."). See, also, Ramos-Bonilla v. Mukasey, 543 F.3d 216 (5th Cir. 2008); Anaya-Aguilar v. Holder, 683 F.3d 369, at 371-72 (7th Cir. 2012); Pllumi v. Attorney General of the United States, 642 F.3d 155, at 159-60 (3rd Cir. 2011) ("If . . . the BIA declines to exercise its sua sponte authority . . . in a manner that does not indicate a misunderstanding of its authority, then that decision will be unreviewable."); Gor v. Holder, 607 F.3d 180, at 187-93 (6th Cir. 2010).