19-2216
Wade v. Garland
BIA
A098 220 106
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 5th day of August, two thousand twenty-one.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOSÉ A. CABRANES,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 KHADY WADE,
14 Petitioner,
15
16 v. 19-2216
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Samuel Iroegbu, Esq., Albany, NY.
24
25 FOR RESPONDENT: Joseph H. Hunt, Assistant
26 Attorney General; Jessica A.
27 Dawgert, Senior Litigation
28 Counsel; Richard Kelley, Trial
29 Attorney, Office of Immigration
30 Litigation, United States
31 Department of Justice, Washington,
32 DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED in part and GRANTED in part.
5 Petitioner Khady Wade, a native and citizen of Senegal,
6 seeks review of a June 27, 2019, decision of the BIA, denying
7 her motion to reopen. In re Khady Wade, No. A098 220 106
8 (B.I.A. June 27, 2019). We assume the parties’ familiarity
9 with the underlying facts and procedural history.
10 The applicable standards of review are well established.
11 See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir.
12 2008). In her motion to reopen, Wade asserted that she should
13 be permitted to reapply for asylum and related relief based
14 on threatening letters from her husband in Senegal, and that
15 her notice to appear was defective under Pereira v. Sessions,
16 138 S. Ct. 2105 (2018), and thus was insufficient to vest
17 jurisdiction with the immigration judge (“IJ”) and stop the
18 accrual of physical presence required for cancellation of
19 removal.
20 It is undisputed that Wade’s 2018 motion was untimely
21 filed more than seven years after her removal order became
2
1 final in 2011. See 8 U.S.C. § 1229a(c)(7)(C)(i) (providing
2 90-day deadline); 8 C.F.R. § 1003.2(c)(2) (same). Although
3 the time limit does not apply if reopening is sought to apply
4 for asylum and the motion “is based on changed country
5 conditions arising in the country of nationality or the
6 country to which removal has been ordered, if such evidence
7 is material and was not available and would not have been
8 discovered or presented at the previous proceeding,” 8 U.S.C.
9 § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3), the BIA did
10 not err in finding that Wade failed to establish a material
11 change in conditions in Senegal. Even assuming that
12 threatening letters from her husband could constitute a
13 change in conditions in Senegal, see 8 U.S.C.
14 § 1229a(c)(7)(C)(ii); Yuen Jin v. Mukasey, 538 F.3d 143, 151
15 (2d Cir. 2008) (“[C]hanged personal circumstances are
16 insufficient to excuse an alien from the procedural
17 requirements of a motion to reopen.”), the BIA reasonably
18 declined to give the letters weight because Wade did not
19 mention the threats in her affidavit and had no objective
20 evidence to substantiate her allegations, such as a death
21 certificate for her mother (whom her husband claimed to have
3
1 poisoned), a police report of her mother’s death, an affidavit
2 from a family member, or envelopes showing that the letters
3 were mailed from Senegal, see Y.C. v. Holder, 741 F.3d 324,
4 332, 334 (2d Cir. 2013) (deferring to the agency’s evaluation
5 of the weight of evidence and declining to credit a letter
6 from applicant’s spouse overseas). Wade did not submit
7 country reports or other evidence of conditions in Senegal
8 and thus failed to demonstrate a material change to excuse
9 the time limit. See 8 U.S.C. § 1229a(c)(7)(C)(ii).
10 Wade’s purported eligibility for cancellation of removal
11 also did not excuse the time limit. See 8 U.S.C.
12 § 1229a(c)(7)(C)(ii)-(iv) (listing exceptions); 8 C.F.R.
13 § 1003.2(c)(3) (same). Accordingly, the BIA did not abuse
14 its discretion in denying Wade’s motion to reopen as untimely
15 and we deny the petition for review to that extent. See
16 8 U.S.C. § 1229a(c)(7)(C).
17 Although a motion asking the BIA to exercise its
18 authority to reopen sua sponte may be granted at any time,
19 see 8 C.F.R. § 1003.2(a), * we lack jurisdiction to review the
* We rely on the regulations in force at the time the motion
was pending before the BIA.
4
1 agency’s “entirely discretionary” decision declining to
2 reopen proceedings sua sponte, Ali v. Gonzales, 448 F.3d 515,
3 518 (2d Cir. 2006). However, “where the Agency may have
4 declined to exercise its sua sponte authority because it
5 misperceived the legal background and thought, incorrectly,
6 that a reopening would necessarily fail, remand to the Agency
7 for reconsideration in view of the correct law is
8 appropriate.” Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir.
9 2009).
10 The BIA did not misperceive the law to the extent that
11 it found Wade’s defective NTA sufficient to vest jurisdiction
12 with the IJ. See Banegas Gomez v. Barr, 922 F.3d 101, 112
13 (2d Cir. 2019) (“[A]n NTA that omits information regarding
14 the time and date of the initial removal hearing is
15 nevertheless adequate to vest jurisdiction in the Immigration
16 Court, at least so long as a notice of hearing specifying
17 this information is later sent to the alien.”). However, the
18 BIA misperceived the law in concluding that Wade’s hearing
19 notice cured her defective NTA and stopped her accrual of the
20 physical presence required for cancellation of removal, see
21 Niz-Chavez v. Garland, 141 S. Ct. 1474, 1479–84 (2021), and
5
1 we remand for the BIA to reconsider whether to reopen sua
2 sponte in light of the correct law, Mahmood, 570 F.3d at 469.
3 For the foregoing reasons, the petition for review is
4 DENIED in part and GRANTED in part and the case is remanded
5 to the BIA for further proceedings consistent with this
6 decision. All pending motions and applications are DENIED
7 and stays VACATED.
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe,
10 Clerk of Court
6