Bbale v. Lynch

United States Court of Appeals
For the First Circuit

No. 15-2372

DOUGLAS JIMMY BBALE,

Petitioner,

v.

LORETTA E.LYNCH,
ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS

Before

Thompson, Selya and Stahl,
Circuit Judges.

George Charles Maroun, Jr. and Maroun & Cabelus LLC on brief
for petitioner.
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Civil Division, United States Department of Justice, John
S. Hogan, Assistant Director, Office of Immigration Litigation,
and Ashley Martin, Trial Attorney, Office of Immigration
Litigation, on brief for respondent.

October 24, 2016
 SELYA, Circuit Judge. The petitioner, Douglas Jimmy

Bbale, seeks judicial review of a final decision of the Board of

Immigration Appeals (BIA), which denied his motion to reopen

removal proceedings. Discerning no abuse of the BIA's broad

discretion, we deny the petition.

I. BACKGROUND

The petitioner, a Ugandan national, was admitted to the

United States as a visitor for a six-month period that expired on

November 22, 2000. He overstayed, and almost nine years elapsed

before the Department of Homeland Security (DHS) instituted

removal proceedings against him.

The petitioner initially pursued an application to

adjust his status to that of a lawful permanent resident based on

a petition filed by his citizen-spouse. That strategy backfired

when, on December 5, 2011, United States Citizenship and

Immigration Services issued a notice of intent to revoke the

petition, citing inconsistencies in the testimony of the

petitioner and his wife.

After withdrawing his adjustment application, the

petitioner applied for asylum and withholding of removal.1 His

claim for asylum was predicated on an asserted fear of persecution

1
The petitioner also asked for relief under the United
Nations Convention Against Torture. Because this initiative was
not pursued before the BIA, we make no further reference to it.

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in Uganda premised on genuine and imputed political opinion.

Specifically, he alleged that in April of 1998, his father was

imprisoned — and ultimately never seen again — because he was an

active member of the Democratic Party of Uganda, a political party

that opposed the Ugandan President, Yoweri Museveni. He added

that between 1998 and 1999, he himself was detained by Ugandan

police on four occasions. Withal, he was not physically harmed

and the longest period he was detained was one day. The petitioner

also suggested that his more recent political activities would

subject him to persecution in Uganda: while living in the United

States, the petitioner has organized and participated in anti-

Museveni demonstrations.

The petitioner also averred that in 2009 his brother was

arrested in Uganda on a murder charge. The petitioner branded

this arrest as bogus, contending that the Museveni government had

fabricated allegations that his brother was practicing voodoo and

witchcraft on small children, including child sacrifice. Although

the brother was initially acquitted, he was subsequently convicted

and remains in prison. According to the petitioner, both the

arrest and prosecution were politically motivated, and his brother

is innocent.

The petitioner conceded removability in 2012 and later

testified at a merits hearing in the immigration court on January

27, 2014. At the conclusion of the hearing, the immigration judge

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(IJ) denied the petitioner's applications for asylum and

withholding of removal in a bench decision. The IJ denied the

asylum application as untimely, noting that the petitioner had not

alleged changed or extraordinary circumstances that could justify

the 13-year delay in seeking asylum. The IJ also concluded that

the petitioner had failed to establish his eligibility for

withholding of removal.

The petitioner appealed to the BIA. He argued that he

did not apply earlier for asylum because he was not then aware of

either the filing deadline or the severity of his brother's

circumstances. With respect to withholding of removal, he argued

that the IJ had failed to consider the connection between the

accusations of witchcraft against his brother and the petitioner's

membership in a family now associated with witchcraft. On June

10, 2015, the BIA rejected these arguments and dismissed the

petitioner's appeal.

The petitioner did not seek judicial review of the BIA's

decision but, on August 10, 2015, moved to reopen removal

proceedings. The petitioner submitted that a key witness — his

niece — had been unable to testify at his merits hearing because

she was mentally incapacitated due to the psychological trauma

that she suffered as a result of her father's (the petitioner's

brother's) immurement. He added that his niece had received asylum

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based on circumstances substantially similar to those that

pertained in his case.

The BIA denied the motion to reopen. It concluded that

the petitioner had failed to satisfy the requirements for

reopening, as he did not demonstrate that the motion was supported

by new, previously unavailable, material evidence. The BIA went

on to explain that the fact that the petitioner's niece was granted

asylum in 2012 was not a new fact supported by previously

unavailable evidence that could not have been presented at the

removal hearing; and it determined that a medical report submitted

by the petitioner did not demonstrate that his niece was incapable

of providing testimony at the merits hearing.

This timely petition for judicial review followed. The

only issue open to us is whether the BIA abused its discretion in

denying the petitioner's motion to reopen.

II. ANALYSIS

We preface our analysis with a summary of the applicable

legal standards. Motions to reopen removal proceedings are

contrary to "the compelling public interests in finality and the

expeditious processing of proceedings" and are thus disfavored.

Roberts v. Gonzales, 422 F.3d 33, 35 (1st Cir. 2005) (quoting Falae

v. Gonzáles, 411 F.3d 11, 14-15 (1st Cir. 2005)). Consistent with

this principle, the BIA enjoys wide latitude in deciding whether

to grant or deny such a motion. See INS v. Doherty, 502 U.S. 314,

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323 (1992). Judicial review of such a decision is solely for abuse

of discretion. See Roberts, 422 F.3d at 35; Falae, 411 F.3d at

14. Consequently, the BIA's decision will stand unless the

petitioner can show that the BIA committed an error of law or

exercised its judgment in an arbitrary, capricious, or irrational

manner. See Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir. 2007).

An alien seeking to reopen removal proceedings based on

newly discovered evidence must both "introduce new, material

evidence that was not available at the original merits hearing"

and "make out a 'prima facie case of eligibility for the relief

sought.'" Perez v. Holder, 740 F.3d 57, 62 (1st Cir. 2014)

(quoting Jutus v. Holder, 723 F.3d 105, 110 (1st Cir. 2013)). The

alien's motion "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." 8 C.F.R.

§ 1003.2(c)(1).

With this framework in place, we turn to the case at

hand. To begin, the petitioner claims that the BIA abused its

discretion in finding that his niece's anticipated testimony was

not new, previously unavailable material evidence. The record

belies this claim: it shows that the anticipated testimony of the

petitioner's niece (who was granted asylum in 2012) was neither

new, previously unavailable, nor material. We explain briefly.

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 As an initial matter, we note that the petitioner's

motion was procedurally flawed; it did not sufficiently articulate

what testimony his niece would provide if the proceedings were

reopened. This flaw is fatal because we — like the BIA — are

unable adequately to assess the materiality of the proffered

testimony. Though the petitioner stated conclusorily that his

niece had been granted asylum based on the same circumstances as

those asserted in his application, his motion failed to describe

the nature and extent of her expected testimony.

Nor was this the only shortcoming in the petitioner's

motion to reopen. For the most part, the petitioner failed to

support his motion with the requisite "affidavits or other

evidentiary material." 8 C.F.R. § 1003.2(c)(1).2 A party's

factual assertions in pleadings are not evidence and are not

sufficient to establish material facts. See Jupiter v. Ashcroft,

396 F.3d 487, 491 (1st Cir. 2005).

The petitioner attempts to excuse himself from this

requirement by arguing that information pertaining to his niece's

asylum application is confidential and, thus, within the ambit of

2 To be sure, the petitioner did include a piece of evidence
— the medical report — with his motion papers. But this report,
in and of itself, was insufficient to cure the petitioner's
failure.

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8 C.F.R. § 208.6.3 But this is whistling past the graveyard:

nothing in the cited regulation prevented the petitioner's niece

from recounting the substance of her anticipated testimony in an

affidavit or declaration. The regulation bars the government from

disclosing certain confidential information; it does not bar

either the asylum-seeker or prospective witnesses from testifying

about facts within their personal knowledge.

Apart from these procedural shortcomings, the

petitioner's proffer — as the BIA recognized — failed on the

merits: even if the petitioner had adequately stated the facts

that would be presented and duly supported that account with

affidavits or other evidentiary materials, the information that he

relied on was not new. The petitioner's argument is that the fact

that his niece was granted asylum under substantially the same

circumstances is new, previously unavailable, material evidence.

But the record shows with conspicuous clarity that the petitioner's

niece received asylum in 2012 — more than a year before the

petitioner's January 2014 removal hearing. The record also reveals

3Section 208.6(a) states in pertinent part that, with certain
exceptions not relevant here, "[i]nformation contained in or
pertaining to any asylum application . . . shall not be disclosed
without the written consent of the applicant . . . ." Relatedly,
section 208.6(b) states in pertinent part that "[t]he
confidentiality of other records kept by the Service and the
Executive Office for Immigration Review that indicate that a
specific alien has applied for asylum . . . shall also be protected
from disclosure."

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beyond any shadow of a doubt that the petitioner was aware of his

niece's asylum status prior to his merits hearing. After all, his

niece wrote a letter in support of his application for asylum and

withholding of removal in September of 2013 (in which she mentioned

her own asylum experience).

The petitioner's cause is not advanced by his assertion

that his niece would testify that she genuinely fears for his

safety should he be repatriated. Since these statements were

previously made in the niece's September 2013 letter, they can

scarcely be regarded as "new."4 See Morgan v. Holder, 634 F.3d

53, 61 (1st Cir. 2011) (explaining that evidence that is cumulative

of other evidence in the record is not "new" evidence sufficient

to warrant reopening).

To say more would be pointless. Given that the BIA

supportably found that the petitioner failed to introduce new,

4 Our conclusion that the niece's statements are not new
disposes of the matter. For the sake of completeness, however, we
note that Dr. Husson's medical report, relied on by the petitioner,
nowhere states, either directly or by fair implication, that the
petitioner's niece was unable to testify at the January 2014
removal hearing. Though the report notes that she "had
difficulties" discussing her father's alleged crimes during a
period that arguably included the date of the petitioner's removal
hearing, it does not attest that she was unable to testify.
Moreover, in September of 2013, the niece wrote a letter in
furtherance of her uncle's application that described the events
surrounding her father's arrest. This letter undercuts any
intimation in Dr. Husson's report that the petitioner's niece was
incapacitated during the time leading up to his January 2014 merits
hearing.

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previously unavailable, material evidence in connection with his

motion to reopen, it was within the BIA's discretion to deny the

motion without reference to whether the petitioner had made out a

prima facie case for asylum. See Perez, 740 F.3d at 62-63.

III. CONCLUSION

For the reasons elucidated above, we deny the petition

for judicial review. But although we need go no further, we think

it appropriate to note that this appears to be a case in which the

exercise of prosecutorial discretion may be appropriate under the

DHS's detention and removal priorities. See Memorandum from Jeh

Charles Johnson, Sec'y, U.S. Department of Homeland Sec., on

Policies for the Apprehension, Detention and Removal of

Undocumented Immigrants to Thomas S. Winkowski, Acting Dir., U.S.

Immigration & Customs Enf't, et al. (Nov. 20, 2014). We explain

briefly.

DHS divides its civil immigration enforcement priorities

into three categories of decreasing importance: (1) threats to

national security, border security, and public safety; (2)

misdemeanants and new immigration violators; and (3) aliens who

have been issued final removal orders. Id. at 3-4. DHS

acknowledges that it "must exercise prosecutorial discretion in

the enforcement of the law" and should exercise this discretion

"as early in the case or proceeding as possible in order to

. . . pursu[e] enforcement and removal of higher priority cases."

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Id. at 2. We are not convinced that DHS's stated enforcement

priorities are intended to cover someone in the petitioner's

situation.

The petitioner has meaningful family connections in the

United States and has presented credible testimony that he would

face a significant threat to his safety if he were to be returned

to Uganda, especially given his familial history of political

persecution in that country and his recent political activities in

the United States. Although the one significant blemish on the

petitioner's record as a law-abiding person — an incident in which

he was operating a motor vehicle while under the influence of

alcohol and left the scene of an accident — is serious and likely

qualifies under the letter of DHS's second priority category (for

"significant misdemeanors"), DHS's policy provides that removal

orders should be set aside if "there are factors indicating the

alien is not a threat to national security, border security, or

public safety." Id. at 5. Such factors include the alien's length

of time in the United States, the alien's family or community ties

in the United States, and other "compelling humanitarian factors."

Id. at 6. Here, it appears that the petitioner and his family

have long been opposed to the ruling regime in Uganda, opposition

which has not gone unnoticed and which the IJ plausibly concluded

would cause the petitioner to be exposed to imprisonment or more

grievous harm if he was repatriated.

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 We summarize succinctly. Even though we find that the

petitioner's argument for reopening of removal proceedings fails

under the precedent established in this circuit, the

administration's enforcement priorities strongly indicate that the

petitioner should be a candidate for prosecutorial discretion.

After all, a removal decision should not be made or effectuated

"under a misapprehension of the governing departmental policy."

Ortiz v. Lynch, 640 Fed. App'x 42, 45 (2d Cir. 2016).

The petition for judicial review is denied.

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