Dager v. Garland

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 6, 2024
• Docket: 23-9583
• Status: Unpublished

Opinion

Appellate Case: 23-9583 Document: 010111043913 Date Filed: 05/06/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 6, 2024 _________________________________ Christopher M. Wolpert Clerk of Court TAREK AL BASHER DAGER,

Petitioner - Appellant,

v. No. 23-9583 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,

Respondent - Appellee. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MATHESON, MORITZ, and FEDERICO, Circuit Judges. _________________________________

Petitioner Tarek Al Basher Dager filed an application for asylum, withholding

of removal, and protection under the Convention Against Torture (CAT). An

immigration judge (IJ) denied his application and the Board of Immigration Appeals

(BIA) affirmed. Dager then filed a pro se motion to reopen or reconsider, which the

BIA denied. He now petitions for review of the denial of his motion to reopen or

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 23-9583 Document: 010111043913 Date Filed: 05/06/2024 Page: 2

reconsider. Exercising jurisdiction pursuant to 8 U.S.C. § 1252, we deny Dager’s

petition.

I

Dager is a native and citizen of Libya. He was admitted to the United States

on or about September 4, 2010, as a nonimmigrant student with authorization to

remain in the United States until he completed his academic program. Between

September 2010 and July 2013, Dager attended three different universities in the

Denver metropolitan area. Due to a lack of funding, Dager was unable to continue

his studies, but he remained in the United States without authorization.

In July 2015, the Department of Homeland Security initiated removal

proceedings against Dager. Dager responded by filing an application for asylum,

withholding of removal, and protection under the CAT. Dager alleged in his

application that his surname was well-known in Libya due to his paternal uncle,

Alhade Dager, having served as a high-ranking military officer under Colonel

Muammar al-Gaddafi (Gaddafi). Dager further alleged that after the Gaddafi regime

was overthrown in 2011, his uncle went into hiding in a mountainous region of Libya

and the rest of his “family faced threats because of the belief [they] all supported

Gaddafi.” R. at 233. According to Dager, his family moved from their home to a

farm for safety, even though the living conditions at the farm were difficult. Dager

also alleged that in early 2016, a group of armed militia questioned his family about

why he was still in the United States and what he was doing there. Dager expressed

fear that he would be “arrested and imprisoned and tortured or killed by militias in

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Libya” based upon his “last name and the associated belief [he] supported Gaddafi.”

Id.

At his initial appearance before an IJ, Dager conceded all the government’s

factual allegations and, consequently, the IJ sustained the removal charge. Dager

appeared before an IJ again in late 2018 for a hearing on the merits of his application

for relief. During his testimony, Dager reiterated the information alleged in his

application and discussed other family members in Libya who had allegedly been

threatened or arrested due to their perceived connections with the Gaddafi regime.

Dager also stated that he filed his application in 2017 because, prior to that time, he

did not think he faced a risk of harm in Libya.

Shortly after the hearing, the IJ issued a written decision denying Dager’s

asylum application and granting him voluntary departure in lieu of removal. As an

initial matter, the IJ found that Dager was a credible witness. But the IJ concluded

that Dager’s asylum application was untimely because it was filed more than a year

after his entry into the United States. Although Dager argued that he qualified for an

exception to the one-year filing deadline “on account of changed circumstances,” the

IJ found that “it would have been reasonable for [Dager] to file, at the latest, in 2014,

when . . . he was aware of the risks he would face in Libya,” and “not . . . after he

was served” with the notice to appear. Id. The IJ therefore concluded that Dager’s

“delay in filing was unreasonable,” id., his application was untimely, and he was

ineligible for asylum.

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Alternatively, the IJ concluded that, regardless of the timeliness of Mr.

Dager’s application for asylum, he failed to establish he was a “refugee” as defined

in 8 U.S.C. § 1101(a)(42). The IJ found no corroborating evidence to support

Dager’s allegations regarding his paternal uncle. The IJ thus found that Dager could

not “show that the Dager family name [wa]s strongly associated with supporting”

Gaddafi, and in turn could not “show that he w[ould] be persecuted on account of his

membership in the family and the imputed political opinion that is allegedly tethered

to the family name.” Id. at 109. Further, the IJ found that Dager’s testimony alone

was insufficient to establish that the alleged incidents involving his family were due

to anything other than the “general violence and unrest in the area.” Id.

The IJ offered two additional grounds for denying Dager’s application for

asylum. First, the IJ concluded that that even if Dager could establish a nexus

between his feared persecution and a protected ground, he failed to establish that his

fear of future persecution in Libya was objectively reasonable. In support, the IJ

noted that Dager conceded that his family had never been physically harmed by the

militias in Libya and that Dager failed to show that he would be identified as a

Gaddafi loyalist by the militias in Libya. Second, the IJ concluded that even if Dager

could establish an objectively reasonable fear of persecution “in parts of Libya,” it

would be reasonable for Dager to relocate to other parts of the country. Id. at 110.

The IJ also denied Dager’s application for withholding of removal, explaining

that because Dager failed to demonstrate his eligibility for asylum, he necessarily

also failed to meet the more stringent standard for withholding of removal. As for

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Dager’s application for protection under the CAT, the IJ concluded that Dager failed

to establish it was more likely than not that he would be tortured if removed to Libya.

Dager appealed the IJ’s decision to the BIA which issued a single-member

order dismissing Dager’s appeal. The BIA expressly agreed with all the IJ’s findings

and conclusions as to Dager’s application. Because the record did not show that

Dager paid the voluntary departure bond, the BIA chose not to reinstate the period of

voluntary departure and instead ordered Dager removed from the United States.

Shortly thereafter, Dager filed a pro se motion to reopen or reconsider. In it, he

asked the BIA to reevaluate the entire record and to consider new information

submitted by Dager regarding conditions in Libya. The BIA denied Dager’s motion,

concluding he failed to establish any error in the BIA’s original order, the new

evidence would not likely change the result in the case, and no exceptional

circumstances warranted sua sponte reopening of the proceedings.

Dager, through counsel, filed a petition for review of the BIA’s order denying

his motion to reopen or reconsider.

II

Dager’s petition raises two issues. First, he argues that the BIA erred in

denying his motion to reopen. Second, he argues that the BIA erred in denying his

motion to reconsider.

A

The purpose of a motion to reopen is to present new material facts and

evidence that were previously undiscoverable and unavailable at the former hearing

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that may, among other things, demonstrate that the petitioner is eligible for relief

from removal. See 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c)(1). To merit

remand, a petitioner seeking to reopen must show that his new evidence “would

likely change the result in the case.” Maatougui v. Holder, 738 F.3d 1230, 1240

(10th Cir. 2013) (internal quotation marks omitted).

The BIA’s denial of a motion to reopen is “a final, separately appealable

order.” Infanzon v. Ashcroft, 386 F.3d 1359, 1361 (10th Cir. 2004). We review the

BIA’s denial of a motion to reopen for an abuse of discretion. Id. at 1362. “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.” Id. (internal quotation marks omitted). The

BIA also abuses its discretion by committing a legal error or making a factual finding

that is not supported by substantial evidence. See Qiu v. Sessions, 870 F.3d 1200,

1202 (10th Cir. 2017).

Dager argues that the BIA abused its discretion in denying his motion to

reopen because the motion was meant to show “significant and material changes in

Libya beginning in 2020 that seriously jeopardize his safety in the country.” Pet’r

Br. at 12. More specifically, Dager argues that the new evidence showed that the

Libyan “government and government-aligned forces . . . took control over several

cities” in western Libya, including his hometown, and in doing so “loot[ed] and

burn[ed] . . . civilian homes in retaliation for their perceived affiliation with one side

or the other” and “planted mines that risk harming civilians.” Id. at 13–14 (emphasis

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omitted). According to Dager, this new evidence “shows [that] harm directed at

civilians in Libya is rampant and nationwide,” and establishes his “inability to

reasonably relocate internally in Libya.” Id. at 14. Dager in turn argues that the

BIA’s conclusion that internal relocation continued to be a reasonable option for him

“inexplicably departs from established policies, makes a factual finding on [his]

ability to relocate that is not supported by substantial evidence, and . . . constitutes an

error o[f] law.” Id. at 15 (emphasis omitted).

We reject Dager’s arguments. In denying the motion to reopen, the BIA

accurately noted that Dager’s new evidence indicated the “conditions in Libya ha[d]

deteriorated since his hearing in 2018, including politically motivated violence,

warring factions and tribes, and atrocities committed against civilians by militia

members.” R. at 3. But the BIA concluded, and we agree, that Dager’s new

evidence was insufficient to establish his right to relief. In particular, the new

evidence did not support Dager’s assertion that his fraternal uncle was a prominent

member of Gaddafi’s military or, in turn, that Dager would likely be viewed as a

Gaddafi supporter upon his return to Libya. Further, although the new evidence

indicated that fighting between opposing political factions in Libya continues, it does

not undercut the IJ’s conclusion that Dager could, like other members of his family,

safely relocate. Under these circumstances, the BIA did not abuse its discretion in

denying Dager’s motion to reopen.

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B

Dager next argues that the BIA erred in denying his motion to reconsider. The

purpose of a motion to reconsider is to call the BIA’s attention to errors of fact or law

in its decision. Mahamat v. Gonzales, 430 F.3d 1281, 1283 n.3 (10th Cir. 2005). We

have jurisdiction to review the BIA’s decision denying a motion to reconsider, and

we review that decision for an abuse of discretion. See Mata v. Lynch, 576 U.S. 143,

147 (2015) (addressing jurisdiction); Rodas-Orellana v. Holder, 780 F.3d 982, 990

(10th Cir. 2015) (addressing standard of review); 8 C.F.R. § 1003.2(a).

Dager argues that the evidence he presented to the IJ, which included his

affidavit, a letter from his father, and his testimony before the IJ, was sufficient to

establish that his paternal uncle served a prominent role in Gaddafi’s military and, in

turn, to establish the “requisite nexus to his family and the imputed political opinion

that he supported Gaddafi.” Pet’r Br. at 16. He maintains that the BIA’s decision to

the contrary “lack[ed] rational explanation.” Id. (emphasis omitted).

But Dager failed to make these arguments in his pro se motion to reconsider.

Instead, that motion asked the BIA to “reevaluat[e]” the “entire record” in the case,

particularly considering the new documents Dager included with his motion. Because

Dager’s motion to reconsider failed to specify any factual or legal issues that the BIA

erroneously decided or overlooked, the BIA understandably “decline[d] to reconsider

[its] prior decision.” R. at 3.

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III

Finding no abuse of discretion, we deny Dager’s petition for review.

Entered for the Court

Nancy L. Moritz Circuit Judge