United States Court of Appeals
Fifth Circuit
F I L E D
REVISED MARCH 2, 2005
February 28, 2005
UNITED STATES COURT OF APPEALS
For the Fifth Circuit Charles R. Fulbruge III
Clerk
No. 03-61034
NIZAR PANJWANI,
Petitioner,
VERSUS
ALBERTO R. GONZALES, U S ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Before BARKSDALE, GARZA, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Petitioner Nizar Panjwani petitions this Court to review the
decision of the Board of Immigration Appeals (“BIA”) denying his
untimely motion to reopen his deportation proceedings. For the
reasons set forth below, the petition is DENIED.
BACKGROUND
Panjwani, a Muslim and native citizen of India, entered the
United States under a false name and using a false passport.
Panjwani was charged with excludability under the Immigration and
Nationality Act (“INA”) § 241(a)(1)(A), 8 U.S.C. § 1231(a)(1)(A)
(1997); INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i)(1997),
as an alien who procured admission into this country through fraud
and misrepresentation. While Panjwani conceded the charges against
him, he contended that he was entitled to asylum and withholding of
removal.
In May 1998, at Panjwani’s first hearing on the merits of his
asylum and withholding of removal claims, the immigration judge
(“IJ”) determined that Panjwani had not filed a timely application
for asylum, and therefore denied him relief.1 The IJ also found
that Panjwani’s case did not satisfy the requirements for
establishing withholding of removal. Nevertheless, the IJ did
grant Panjwani voluntary departure from the United States.
Panjwani timely appealed the decision of the IJ to the BIA. The
BIA determined that while Panjwani failed to timely submit his
asylum application, there were “extraordinary circumstances” that
prevented him from adhering to the applicable statutory deadlines,
and therefore reversed the decision of the IJ, remanding Panjwani’s
case to the IJ.2
1
Panjwani, as an asylum applicant, has the burden of proving by
clear and convincing evidence that he applied for asylum within one
year of his arrival in the United States, or within one year of
April 1, 1997, whichever is later. INA § 208(a)(2).
2
The BIA found that Panjwani was prepared to submit his asylum
application nearly two months prior to the applicable deadline, but
because of erroneous instructions provided by the IJ, Panjwani
submitted his application one day late. As such, the BIA concluded
that “extraordinary circumstances,” as defined in 8 C.F.R. §
2
On remand, Panjwani presented to the IJ the merits of his
asylum and withholding of removal claims. Specifically, Panjwani
asserted that his native country of India was rife with violent
conflict between Hindus and Muslims. Panjwani argued that because
many of these conflicts ultimately resulted in the killing of
Muslims at the hands of Hindus, and because many of these crimes
were committed in his hometown of Bombay (and allegedly with the
assistance of local police officers), he feared persecution due to
his religious status as a Muslim. The IJ determined that Panjwani
failed to establish eligibility for asylum and further found that
Panjwani failed to carry the heavier burden of demonstrating his
entitlement to withholding of removal. Again, however, Panjwani
was granted voluntary removal to leave the United States. Panjwani
then filed a notice of appeal with the BIA.
The BIA ultimately determined that Panjwani failed to properly
file a brief or statement in connection with his notice of appeal
pursuant to 8 C.F.R. § 1003.1(d)(2)(i)(E)(2003).3 Panjwani then
208.4(a)(5), excused the untimely nature of Panjwani’s application.
3
Section 1003.1(d) provides in relevant part:
(2) Summary dismissal of appeals—(i) Standards. A single Board
member or panel may summarily dismiss any appeal or portion of
any appeal in any case in which:
. . .
(E) The party concerned indicates . . . that he or she will
file a brief or statement in support of the appeal and,
thereafter, does not file such brief or statement, or
reasonably explain his or her failure to do so, within the
3
filed a motion to reopen his case with the BIA based on alleged
changed conditions that had occurred in India.4 The BIA, however,
denied Panjwani’s motion, noting that it had been filed out of time
under 8 C.F.R. § 1003.2(c)(3)(ii)(2003) and concluding that
Panjwani had not satisfied the regulatory exception for the late
filing. Panjwani timely filed the instant appeal.
DISCUSSION
I. Whether this Court has appellate jurisdiction to review
Panjwani’s untimely motion to reopen his deportation
proceedings.
Although not an issue initially raised by either party, this
panel requested the parties to brief whether this Court, under the
transitional rules of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009
(“IIRIRA”), has jurisdiction to review the BIA’s denial of
Panjwani’s untimely motion to reopen. Generally, this Court has
jurisdiction to review appeals of deportation proceedings under §
106 of the INA, 8 U.S.C. § 1105(a) (1994), as amended by §
309(c)(4) of IIRIRA. Requena-Rodriguez v. Pasquarell, 190 F.3d 299,
303 (5th Cir. 1999). IIRIRA’s transitional rules generally apply
time set for filing . . . .
8 C.F.R. § 1003.1(d)(2)(i)(E)(2003).
4
“A motion to reopen seeks fresh consideration on the basis of
newly discovered facts or a change in circumstances since the
[initial] hearing, or solicits an opportunity to apply for
discretionary relief.” Goonsuwan v. Ashcroft, 252 F.3d 383, 386
(5th Cir. 2001)(citation omitted).
4
to deportation cases commenced before IIRIRA’s general effective
date of April 1, 1997, and where the BIA’s final order of exclusion
or deportation was entered on or after October 30, 1996. See
IIRIRA § 309(c)(1), (4), 110 Stat. 3009-625, 625-27; see also Lopez
De Jesus v. INS, 312 F.3d 155, 158 (5th Cir. 2002). Because
Panjwani’s deportation proceedings commenced in March 1997, and the
BIA order made the subject of this appeal was entered in November
2003, Panjwani’s case is governed by IIRIRA’s transitional rules.
Under § 309(c) of IIRIRA, this Court has jurisdiction to
review a BIA decision under § 106(a) of the INA, 8 U.S.C. § 1105a
(1994), unless a specified exception applies. The specified
exceptions preclude judicial review of, inter alia, “any
discretionary decision under section 212(c), 212(h), 212(i), 244,
or 245 of the Immigration and Nationality Act (as in effect as of
the date of the enactment of the [INA]).” IIRIRA § 309(c)(4)(E),
110 Stat. 3009-626.
The Government argues the untimely filing of a motion to
reopen restricts the scope of this Court’s review. Specifically,
the Government contends that because an alien is required to
exhaust his available administrative remedies before seeking review
of a deportation order, 8 U.S.C. § 1105a(c) (1994),5 the failure to
5
The former section 1105a provided, in pertinent part:
(c) Exhaustion of administrative remedies or departure from
United States; disclosure of prior judicial proceedings
An order of deportation or of exclusion shall not be reviewed
by any court if the alien has not exhausted the administrative
remedies available to him as of right under the immigration
5
do so deprives this Court of jurisdiction over the underlying
claims. The Government correctly observes that the relevant
federal regulations require a party to file a motion to reopen “no
later than 90 days after the date on which the final administrative
decision was rendered in the proceeding sought to be reopened.” 8
C.F.R. § 1003.2(c)(2). Panjwani’s motion to reopen was filed 92
days after the order of deportation was entered, and therefore,
according to the Government, Panjwani failed to exhaust his
administrative remedies, thus precluding this Court’s review of the
BIA’s final order.
Panjwani maintains this Court has jurisdiction over his
appeal, notwithstanding the untimely nature of his motion to
reopen. Panjwani argues the regulations specifically provide an
exception in these precise circumstances, noting that motions to
reopen based on changed country conditions in the country of
nationality or deportation are considered timely filed even though
such a motion was filed outside the 90-day limit. See INA §
240(c)(6)(C)(ii), 8 U.S.C. § 1229a(c)(6)(C)(ii); 8 C.F.R. §
1003.2(c)(3)(ii) (providing that petitioner must establish that
evidence of such changed conditions is “material and was not
available and could not have been discovered or presented at the
laws and regulations or if he has departed from the United
States after the issuance of the order. . . .
8 U.S.C. § 1105a(c) (1994).
6
previous hearing”). Panjwani contends he presented the BIA with
sufficient evidence establishing changed country conditions in
India, thus satisfying the exception, which, in turn, made his
motion to reopen timely.
Panjwani further suggests that were we to conclude we lack
appellate jurisdiction to review his appeal, this Court would
essentially cut off review in all situations where: (1) a
petitioner argues that the “changed country conditions” exception
expressly provided for by the regulations transforms an untimely
motion to reopen into a timely one; and (2) the BIA subsequently
rejects that argument. To so conclude, argues Panjwani, would lead
to a result not intended by Congress when it enacted IIRIRA, which
by its terms contemplates Fifth Circuit review of “final orders of
deportation.” See 8 U.S.C. § 1105a(a) (1994).
The jurisdictional issue before us is one of first impression
in this Circuit. While this Court has previously determined that
we have jurisdiction under IIRIRA’s transitional rules to review
the BIA’s denial of a petitioner’s timely motion to reopen
deportation proceedings, Lara v. Trominski, 216 F.3d 487, 495-96
(5th Cir. 2000), we have only peripherally explored the bounds of
this Court’s jurisdiction to review the denial of a motion to
reopen deportation proceedings when such a motion is untimely.
For instance, in Wang v. Ashcroft, 260 F.3d 448 (5th Cir.
2001), the petitioner filed an untimely motion to remand. The
petitioner argued that the BIA abused its discretion by not
7
exercising its power under 8 C.F.R. § 3.2(a) to reopen his case
upon its own motion.6 Id. at 452. The court first set out to
decide whether the petitioner failed to exhaust his administrative
remedies by not requesting the BIA to exercise its authority under
§ 3.2(a). The court observed that section 106(c) of the INA
“states that unless an alien exhausts his available administrative
remedies, the deportation order shall not be reviewed by any
court.” Id. (citing 8 U.S.C. § 1105a(c) (1994)). The court in Wang
noted that an alien’s failure to exhaust such remedies serves as a
jurisdictional bar to consideration of the issue. Id. The court
concluded, therefore, that by not taking the initiative to implore
the BIA to review the untimely motion to remand, the petitioner
“fail[ed] to exhaust his administrative remedies with respect to an
issue when the issue [was] not raised in the first instance before
the BIA – either on direct appeal or in a motion to reopen.” Id. at
452-53 (citing Goonsuwan, 252 F.3d at 388-89).
6
Section 3.2, Reopening or reconsideration before the Board of
Immigration Appeals, provides:
(a) General. The Board may at any time reopen or reconsider on
its own motion any case in which it has rendered a decision.
A request to reopen or reconsider any case in which a decision
has been made by the Board, which request is made by the
Service, or by the party affected by the decision, must be in
the form of a written motion to the Board. The decision to
grant or deny a motion to reopen or reconsider is within the
discretion of the Board, subject to the restrictions of this
section. The Board has discretion to deny a motion to reopen
even if the party moving has made out a prima facie case for
relief.
8 C.F.R. § 3.2(a) (1997).
8
The petitioner in Wang argued that because the BIA is
empowered to act sua sponte to reopen a deportation case, this
Court necessarily has jurisdiction to review the BIA’s decision not
to so act under an abuse of discretion standard of review. Id. at
451. The Wang court disagreed, concluding that while courts and
agencies have a “full panoply” of powers which they may invoke sua
sponte, a party seeking to challenge on appeal the failure of an
agency to act accordingly “must sufficiently raise the issue in the
first instance before the agency.” Id. at 453. As such, the Wang
court held, because the petitioner did not argue before the BIA
that there were exceptional circumstances warranting the exercise
of the BIA’s sua sponte power to reopen the proceedings, this Court
was without jurisdiction to consider the issue on appeal. Id. The
court in Wang further noted, in a footnote, that:
The [BIA]’s decisions indicate that an untimely motion to
reopen will be considered only if there are exceptional
circumstances. A petitioner seeking to have the BIA act
upon its own motion should therefore accompany an
untimely motion with an explanation of the exceptional
circumstances that justify reopening the case. If the
Board then finds that the petitioner’s claim does not
satisfy its “exceptional circumstances” standard, this
Court could then decide its jurisdiction to review the
decision for an abuse of discretion. We are not faced
with such a situation here.
Id. n.4 (emphasis added) (internal citations omitted).
While Wang is distinguishable from the instant case because we
are not dealing with the BIA’s failure to sua sponte reopen
Panjwani’s deportation proceeding, it is clear that we are
9
presented with the precise jurisdictional determination
contemplated by the Wang Court in the above footnote.
In Enriquez-Alvarado v. Ashcroft, 371 F.3d 246 (5th Cir.
2004), the critical issue was whether the petitioner exhausted his
administrative remedies by filing his petition for review within
the relevant statutory deadline provided for by the Nicaraguan and
Central American Relief Act of 1997 (“NACARA”). Id. at 248 (noting
that NACARA required a motion to reopen under NACARA be filed no
later than September 11, 1998). The court noted that 8 U.S.C. §
1252(d) provides that an alien may seek review of a removal order
only if they have first “exhausted all administrative remedies
available to the alien as of right.” Id. (emphasis added). Because
the petitioner failed to timely file his petition, it was concluded
that such inaction deprived this Court of jurisdiction.
Again, while Enriquez-Alvarado may be instructive to our
inquiry, it is distinguishable from the instant case. First, as
the Government concedes, § 1252 is not applicable to this case, as
the statute itself expressly provides that it does not apply to
denials of asylum under 8 U.S.C. § 1158(a). 8 U.S.C. §
1252(a)(2)(B)(ii). Second, there is an important distinction
between the statute at issue in Enriquez-Alvarado and the
regulations governing Panjwani’s motion to reopen. The Court in
Enriquez-Alvarado correctly noted that “failure to meet a timely
filing requirement for review of deportation proceedings strips a
reviewing court of jurisdiction.” Enriquez-Alvarado, 371 F.3d at
10
248 (citing Haroutunian v. INS, 87 F.3d 374, 375 (9th Cir. 1996)).
However, as with the statutory scheme at issue in Enriquez-
Alvarado (NACARA), the other relevant deadlines to which this
jurisdictional rule of law applies do not contain exceptions for
late filing. Examples of statutory deadlines that do not contain
such exceptions include an appeal from the decision of the IJ, 8
U.S.C. § 1252(b)(1), a motion to reconsider, id. § 1229a(c)(5),
and, under the transitional rules of IIRIRA, which are applicable
in this case, an appeal to this Court from a decision of the BIA,
IIRIRA § 309(c)(4)(C), 110 Stat. 3009-626.
Conversely, a motion to reopen explicitly sets forth such an
exception, providing that changed country conditions, which may
occur or come to light outside the 90-day window, create a
cognizable excuse for an untimely filing. See INA §
240(c)(6)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii); 8 C.F.R. §
1003.23(b)(4)(i). The BIA’s denial of Panjwani’s untimely motion
to reopen, in which it concluded that he had not met the necessary
criteria under the statutory exception, is a final, appealable
order over which Congress intended this Court to have the power to
review. See Bronisz v. Ashcroft, 378 F.3d 632, 636-37 (7th Cir.
2004) (citing Chow v. INS, 113 F.3d 659, 663-64 (7th Cir. 1997),
for its holding that “the denial of a motion to reopen is a final
order independently subject to review like any other final order of
deportation or removal,” the denial of which is “a ‘final order of
deportation’ within the meaning of § 309(c)(4)”); cf. Infanzon v.
11
Ashcroft, 386 F.3d 1359, 1361 (10th Cir. 2004) (noting that while
appellate courts lack jurisdiction to review a motion for
continuance because it is a form of discretionary relief, “[a]
motion to reopen, on the other hand, is separately authorized by 8
U.S.C. § 1229a(c)(6),” and “is considered a final, separately
appealable order”).
Moreover, this Court has specifically rejected the
Government’s argument that our jurisdiction hinges on whether
Panjwani exhausted his administrative remedies, i.e., by timely
filing his motion to reopen. In Goonsuwan, 252 F.3d 387, the
petitioner failed to file a motion to reopen his deportation
proceedings prior to seeking habeas review. The relevant statutory
provision, § 106(c) of the INA, provided:
An order of deportation or of exclusion shall not be
reviewed by any court if the alien has not exhausted the
administrative remedies available to him as of right
under the immigration laws and regulations or if he has
departed from the United States after the issuance of the
order.
8 U.S.C. § 1105a(c) (1994) (emphasis added).
In deciding its jurisdiction over the matter, this Court first
observed that the provisions of § 106(c) apply to direct appeals to
this Court from orders of the BIA. Goonsuwan, 252 F.3d at 386.
The Court then noted that the BIA’s broad discretion to deny or
grant a motion to reopen suggests that the initial filing of such
a motion “cannot be characterized as a remedy available ‘as of
right.’” Id. at 387-88 (emphasis added). Therefore, the Court
12
concluded that a petitioner is not required to file a motion to
reopen in order to satisfy the exhaustion requirement in § 106(c).
Id. Therefore, Panjwani’s failure to timely file a motion to
reopen does not necessarily preclude this Court’s review because
the failure to so file is not considered a concomitant failure to
exhaust one’s administrative remedies.
Furthermore, in denying Panjwani’s motion to reopen, the BIA
specifically concluded that Panjwani failed to establish “changed
circumstances” in his native country of India, and therefore his
motion did not fall within the exception provided by §
1003.2(c)(3)(ii). Nowhere within the language of its order does
the BIA contemplate or address Panjwani’s alleged failure to
exhaust his available administrative remedies – an alleged failure
the Government asserts constitutes the sole reason this Court lacks
appellate jurisdiction.
In sum, we conclude that we have appellate jurisdiction over
the BIA’s denial of an untimely motion to reopen deportation
proceedings in instances where the petitioner files such a motion
seeking to avail himself of the exception for “changed
circumstances” under 8 C.F.R. § 1003.2(c)(3)(ii).
II. Whether the BIA abused its discretion in denying Panjwani’s
motion to reopen his deportation proceedings.
Having determined that we have appellate jurisdiction in this
matter, we now decide whether the BIA erred in denying Panjwani’s
motion to reopen by not considering the changed circumstances that
13
Panjwani asserts establishes a well-founded fear of persecution.
The BIA’s denial of a motion to reopen is reviewed for abuse
of discretion and its factual findings are reviewed for substantial
evidence. De Morales v. INS, 116 F.3d 145, 147 (5th Cir. 1997).
The Supreme Court has stated that “the tenor of the Attorney
General’s regulations . . . plainly disfavor[s] motions to reopen.”
INS v. Abudu, 485 U.S. 94, 110 (1988). And, under this deferential
standard, the Attorney General’s discretionary judgment as to
whether to grant or deny relief is “conclusive unless manifestly
contrary to law and an abuse of discretion.” INA § 242(b)(4)(D).7
The relevant regulations provide that an alien may file one
motion to reopen, provided such motion is filed within 90 days of
a final order. 8 C.F.R. § 1003.2(c)(2). The BIA dismissed
Panjwani’s appeal on April 30, 2003, based on his failure to file
a supporting brief. Panjwani filed his motion to reopen 92 days
after the BIA entered its final order denying Panjwani’s appeal.
Panjwani contends, however, that § 1003.2(c)(3)(ii) allows a
7
There are five grounds upon which a motion to reopen may be
denied -- three announced by the Supreme Court and two provided for
by regulation. The three independent grounds identified by the
Supreme Court recognize that the BIA may: (1) “hold that the movant
has not established a prima facie case for the underlying
substantive relief sought”; (2) “hold that the movant has not
introduced previously unavailable, material evidence”; and (3)
“determine that . . . the movant would not be entitled to the
discretionary grant of relief.” INS v. Abudu, 485 U.S. 94, 104-05
(1988). The two additional grounds provided for by regulation
include instances where a motion to reopen is untimely or where a
motion to reopen exceeds the numerical limitations on motions to
reopen. 8 C.F.R. § 1003.2(c)(2)(2004).
14
petitioner to file a motion to reopen at any time based on changed
country conditions that are material to the claim and could not
have been discovered or presented at the prior hearing.
Panjwani argues he established, in his motion to reopen, that
country conditions in India had materially changed, and thus he has
made a prima facie showing that he is entitled to asylum and
withholding of removal. The Attorney General responds that the
only information included in Panjwani’s motion to reopen that was
different from the evidence presented at his initial hearing in
2000 was Panjwani’s assertion that “only last week there was a bus
bombing 10 kilometers from [Panjwani]’s family’s home in Bombay.”
As the Attorney General points out, Panjwani fails to disclose what
group was responsible for the bus bombing or who was killed or
injured as a result of it. While Panjwani testified before the IJ
in 2000 that violence between Muslims (his religious association)
and Hindus was not uncommon in India, and that he feared for his
safety because of it, it seems reasonable for the BIA to have
concluded that a non-specific bus bombing, without any further
details, does not rise to the level of “changed circumstances.”
Accordingly, the BIA’s refusal to reopen the proceedings based on
the untimely nature of Panjwani’s motion and the insufficient
evidence presented therein was within the discretion of the BIA and
wholly proper.
CONCLUSION
15
Having carefully reviewed the entire record of this case and
having fully considered the parties’ respective briefing, we
conclude that while we have appellate jurisdiction to review the
BIA’s denial of an untimely motion to reopen a deportation
proceeding, Panjwani has failed to present material evidence
establishing that he is entitled to asylum based on changed
circumstances in India. Accordingly, the BIA did not abuse its
discretion in denying Panjwani’s motion to reopen his deportation
proceedings. The petition is DENIED.
16