Panjwani v. Gonzales

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