FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS June 2, 2011
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
OUSMANE BA,
Petitioner,
No. 10-9580
v. (Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before O’BRIEN, ANDERSON, and HOLMES, Circuit Judges.
This immigration case involves an alien who claims he is Ousmane Ba, a
native and citizen of Mauritania who entered the United States using “a Senegalese
passport under the name of Mamadou NDao,” Admin. R. at 294. Mr. Ba seeks
review of a Board of Immigration Appeals’s (BIA) order denying his Motion to
Reopen and Reconsider Removal Proceedings Based on New Evidence (Motion to
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Reopen). Exercising jurisdiction under 8 U.S.C. § 1252, see Wei v. Mukasey, 545
F.3d 1248, 1254 (10th Cir. 2008), we deny Mr. Ba’s petition for review.
Background
Mr. Ba asserts that he entered the United States at John F. Kennedy
International Airport in New York on July 15, 2005, using the passport of a
Mr. NDao. On December 14, 2005, Mr. Ba filed an application for asylum,
restriction on removal, 1 and relief under the Convention Against Torture (CAT).
In support, he submitted a Form I-94 in the same name as that on the Senegalese
passport he had used “to [try to] solidify his time of entry into the U.S.,”
Admin. R. at 285. He also presented a refugee card in support of his claim that he
had lived in Senegal from April 1989 until July 2005, when he arrived in the
United States.
In February 2006, the Department of Homeland Security (DHS) found
Mr. Ba statutorily ineligible for asylum and referred his case to an immigration
judge (IJ). Thereafter, the DHS served Mr. Ba with a Notice to Appear, charging
him with inadmissibility under 8 U.S.C. § 1182(a)(6)(A)(i), as “[a]n alien present
1
“Restriction on removal was known as withholding of removal before
amendments to the [Immigration and Nationality Act] made by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L.
No. 104-208, 100 Stat. 3009.” Ismaiel v. Mukasey, 516 F.3d 1198, 1200 n.2
(10th Cir. 2008). Although “[t]he regulations under the INA . . . retain the former
term withholding of removal, see, e.g., 8 C.F.R. § 208.16(b), and both the IJ and
the BIA have referred to withholding of removal,” this court uses “the statutory
term restriction on removal.” Ismaiel, 516 F.3d at 1200 n. 2.
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in the United States without being admitted or paroled . . . .” In March 2006,
Mr. Ba appeared with counsel before an IJ and conceded his inadmissability, but
maintained that he had entered the United States on July 15, 2005, at John F.
Kennedy International Airport, using an assumed identity. Mr. Ba’s hearing was
continued until May 1, 2006. Meanwhile, the DHS submitted Mr. Ba’s refugee
card to a forensic document examiner employed by the DHS’s Forensic Document
Laboratory (FDL) to determine whether the refugee card was “authentic.”
Admin. R. at 639.
At Mr. Ba’s May 1, 2006, hearing, he testified that he and his family were
expelled from Mauritania on April 29, 1989, by “military people,” id. at 141,
because of questions regarding whether they were citizens of that country. Mr. Ba
claimed that he and his family were forced to cross into Senegal where they lived
in a Red Cross refugee camp for five to six years. He explained that it was in this
refugee camp that he was issued the refugee card he had submitted in support of
his application for asylum, restriction on removal, and relief under the CAT. He
further testified that between 1995 and 1996, he left the refugee camp and worked
for a Lebanese man in Dakar, Senegal, until he departed for the United States in
July 2005. Mr. Ba stated that the Lebanese man paid for him to travel to the
United States using someone else’s passport, and that Mr. Ba did so in the
company of another individual whose name he never learned and who confiscated
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Mr. Ba’s plane ticket and (fraudulent) passport after they went through customs in
the United States.
At the end of the May 1, 2006, hearing, the IJ granted Mr. Ba asylum. In
doing so, the IJ acknowledged that he did not yet have a forensics report for the
refugee card and stated that if “further forensic review indicate[s] that the person
on the refugee [card] is not [Mr. Ba], then [the IJ] would certainly consider
favorably a motion to reopen” filed by the DHS. Id. at 116.
In July 2006, the DHS filed a motion to reopen, asserting that the FDL had
determined that the refugee card submitted by Mr. Ba was “counterfeit,” id. at 648,
which “discredit[ed] [Mr. Ba’s] testimony regarding his asylum eligibility and
specifically discredit[ed] his claim of identity,” id. at 646 (citing In re O-D-, 21 I.
& N. Dec. 1079, 1082 (BIA 1998)). Mr. Ba opposed the DHS’s motion to reopen,
but in July 2006, the IJ granted the DHS’s motion.
At the reopened removal proceedings in 2007, counsel for Mr. Ba
cross-examined the FDL examiner who had analyzed Mr. Ba’s refugee card. The
proceedings were continued until May 12, 2008, at which time Mr. Ba was further
questioned about the refugee card and when he came into possession of it. At the
end of the hearing, the IJ reversed his May 1, 2006, grant of asylum, finding
Mr. Ba ineligible for asylum, restriction on removal, and protection under the
CAT. Specifically, the IJ found that the forensic document “examiner testified
convincingly that the refugee [card] is counterfeit.” Admin. R. at 105. The IJ also
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found that Mr. Ba gave conflicting testimony regarding when he was issued the
refugee card. Thus, the IJ found incredible Mr. Ba’s claims and ordered him
removed to Mauritania or, alternatively, to Senegal. On February 26, 2010, the
BIA dismissed Mr. Ba’s appeal of the IJ’s May 12, 2008, decision.
Mr. Ba did not petition for judicial review within thirty days of the BIA’s
February 26, 2010, decision, as required by 8 U.S.C. § 1252(b)(1). Rather, on
May 27, 2010, Mr. Ba filed with the BIA the Motion to Reopen here at issue. As
grounds for the Motion he asserted he had “obtained new evidence, including [(1)]
his original Mauritanian birth certificate,” Admin. R. at 23, that, he claimed, he
“was only able to obtain . . . after a pilot repatriation program that occurred before
Mauritania’s democratically elected president was ousted in a military coup
d’etat,” id. at 24; (2) his children’s Senegalese refugee camp school identity cards;
(3) a “Certification,” dated March 22, 2007, from the “President of [the Senegalese
refugee camp] . . . [stating] that Mr. Ousmane Ba . . . does reside in the stated
refugee camp,” id. at 39; (4) materials that Mr. Ba claimed to be “identity
documents from [the President of the refugee camp], confirming Mr. Ba’s presence
in the camp,” id. at 23; and (5) “the birth certificate of his youngest child, born in
[the Senegalese refugee camp], as proof of [Mr. Ba’s] identity and presence at the
. . . camp,” id.
On October 18, 2010, the BIA denied Mr. Ba’s motion to reopen. In
particular, it held that Mr. Ba had failed to adequately explain why he did not
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submit his new identification documents earlier, as required under agency rules.
The BIA acknowledged Mr. Ba’s contention that the new evidence became
available only through a recent pilot program of the Mauritanian government, but
it nonetheless rejected his argument because he gave “no details regarding such a
program, and he also [did] not explain when such a program may have permitted
him to obtain such documents.” Id. at 7 (emphasis added). In addition, the BIA
noted Mr. Ba’s failure to address his previous submission of an “identity document
[that] had been determined [to be] fraudulent.” Id. Ultimately, the BIA concluded
that Mr. Ba had failed to “convince [the BIA] to disturb [its] prior decision.” Id.
Mr. Ba petitions for review of the BIA’s denial of his Motion to Reopen.
Discussion
We review for an abuse of discretion the BIA’s order denying Mr. Ba’s
Motion to Reopen. See Wei, 545 F.3d at 1254. “The BIA abuses its discretion
when its decision provides no rational explanation, inexplicably departs from
established policies, is devoid of any reasoning, or contains only summary or
conclusory statements.” Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th Cir.
2004) (internal quotation marks omitted).
In the three-page argument section of Mr. Ba’s appellate brief, he contends
the BIA abused its discretion in denying his Motion to Reopen because it
“provided no rational explanation for the basis of its denial as the denial contained
only summary or conclusory statements regarding the burden of proof and the
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standard of review it held to Mr. Ba,” thereby violating his right to due process.
Pet’r Opening Br. at 5. Mr. Ba’s contentions are misplaced.
The BIA’s denial of the Motion to Reopen was based on its determination
that Mr. Ba failed to explain why the identification documents he submitted with
his Motion to Reopen were previously unavailable, and he neglected to provide
details about the pilot program or when it enabled him to obtain the documents.
Contrary to Mr. Ba’s position, this is an acceptable basis for denying the Motion
to Reopen; indeed, the applicable regulation–upon which the BIA relied–instructs
that “[a] motion to reopen proceedings shall not be granted unless it appears . . .
that evidence sought to be offered is material and was not available and could not
have been discovered or presented at the former hearing.” 8 C.F.R.
§ 1003.2(c)(1); see also Mickeviciute v. INS, 327 F.3d 1159, 1162 (10th Cir. 2003)
(observing that “[t]he BIA may deny a motion to reopen” where “the movant has
not introduced previously unavailable, material evidence” (internal quotation
marks omitted)).
The BIA’s denial of the Motion to Reopen was also based on its conclusion
that Mr. Ba failed to demonstrate that the identification documents would likely
change the result of its previous decision. This, too, is an acceptable basis for
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denying the Motion to Reopen. As has often been noted (and as was noted by the
BIA in denying the Motion to Reopen):
the [BIA] ordinarily will not consider a discretionary grant of a
motion to [reopen] unless the moving party meets a ‘heavy burden’
and presents evidence of such a nature that the [BIA] is satisfied that
if proceedings before the immigration judge were reopened, with all
the attendant delays, the new evidence offered would likely change
the result in the case.
Matter of Coelho, 20 I. & N. Dec. 464, 473 (1992) (emphasis added) (citing INS v.
Doherty, 502 U.S. 314, 322-24 (1992), and INS v. Abudu, 485 U.S. 94, 102-11
(1988)). 2 Additionally, Mr. Ba submitted the allegedly new identification
documents without addressing the IJ’s or the BIA’s previous determinations that
the refugee card he had submitted was counterfeit.
2
To the extent Mr. Ba claims his due process rights were violated, his
argument is without merit. As best we can tell, Mr. Ba has been afforded all the
process he was due since the inception of his removal proceedings more than five
years ago. See Schroeck v. Gonzales, 429 F.3d 947, 951-52 (10th Cir. 2005)
(“[T]he procedural safeguards [in removal proceedings] are minimal because
aliens do not have a constitutional right to enter or remain in the United States.
An alien in removal proceedings is entitled only to the Fifth Amendment
guarantee of fundamental fairness. Therefore, when facing removal, aliens are
entitled only to procedural due process, which provides the opportunity to be
heard at a meaningful time and in a meaningful manner.” (citations and internal
quotation marks omitted)).
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Conclusion
For the reasons stated above, we conclude that the BIA did not abuse its
discretion by denying Mr. Ba’s Motion to Reopen. The petition for review is
therefore DENIED.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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