Hope Karekezi v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 16, 2020
• Docket: 19-14026
• Status: Unpublished

Opinion

Case: 19-14026 Date Filed: 04/16/2020 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-14026 Non-Argument Calendar ________________________

Agency No. A088-488-386

HOPE KAREKEZI, ANDY MATHE, SHAMMAH AIMEE KAREKEZI, THULANI NKOSANA MATHE,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(April 16, 2020)

Before ROSENBAUM, BRANCH and LAGOA, Circuit Judges.

PER CURIAM: Case: 19-14026 Date Filed: 04/16/2020 Page: 2 of 10

Hope Karekezi,1 a native and citizen of South Africa, seeks our review of

the Board of Immigration Appeals’ (“BIA”) denial of her third motion to reopen

her removal proceedings. Karekezi argues that the BIA abused its discretion when

it refused to reopen the proceedings based on (1) its sua sponte authority or (2) on

the changed country conditions and new material facts not previously available.

She further argues that she was deprived of procedural due process as “[t]he failure

to receive relief, in this case, amounts to a deprivation of a liberty interest.”

Because we lack jurisdiction over part of her petition and the BIA did not abuse its

discretion in denying the motion to reopen, we dismiss the petition in part and deny

it in part.

I. Background

Karekezi and her three children entered the United States from South Africa

in July 2007. Upon arrival at Hartsfield-Jackson International Airport in Atlanta,

Georgia, she told authorities that she came to the United States to apply for

asylum. In August 2007, the Department of Homeland Security (“DHS”) served

her with a notice to appear that charged her with inadmissibility to the United

States as: (1) an alien who, by fraud or willfully misrepresenting a material fact,

sought to procure a visa or admission into the United States, in violation of 8

1 Although Karekezi’s three children, Andy Mathe, Shammah Karekezi, and Thulani Mathe, are also named as petitioners in this case, they sought relief strictly as derivatives of the asylum application underlying Karekezi’s third motion to reopen. 2 Case: 19-14026 Date Filed: 04/16/2020 Page: 3 of 10

U.S.C. § 1182(a)(6)(C)(i); and (2) an alien who at the time of application for

admission, was not in possession of a valid, unexpired entry document, in violation

of 8 U.S.C. § 1182(a)(7)(A)(i)(1). She ultimately admitted the truth of the

allegations and sought asylum and withholding of removal based on fear that she

and her family were in danger if returned to South Africa. Specifically, she

asserted that she had received threats from what she believed were “Tutsi[] agents”

related to her husband who is a Hutu from Rwanda and had refugee status in South

Africa. The immigration judge found Karekezi inadmissible as charged, denied

her application for asylum and withholding of removal, and ordered her removed

to South Africa. The BIA affirmed that decision. We subsequently denied her

petition for review of the BIA’s decision. See Karekezi v. U.S. Att’y Gen., 380 F.

App’x 815 (11th Cir. 2010). Nevertheless, the removal order was not executed and

Karekezi and her children continued to live in the United States.

After two unsuccessful counseled motions to reopen the proceedings, 2 on

November 28, 2018, Karekezi filed a third counseled motion to reopen entitled

“sua sponte motion to reopen and stay of removal,” requesting that the BIA reopen

the proceedings due to changed country conditions, pursuant to 8 U.S.C.

§ 1229a(c)(7)(C)(ii), and the BIA’s sua sponte authority, pursuant to 8 C.F.R.

2 Karekezi previously filed a counseled motion to reopen on February 27, 2018, and October 15, 2018, respectively, which were denied by the BIA, and are not the subject of this appeal. 3 Case: 19-14026 Date Filed: 04/16/2020 Page: 4 of 10

§ 1003.2(a). As grounds for reopening, Karekezi asserted that: (1) one of her

children had applied for adjustment of status as a special immigrant juvenile, and

Karekezi should be permitted to remain in the United States with her child, and

(2) the existence of changed country conditions, namely, that Hutu members—a

group of which she would be considered a part because of her marriage to a

Hutu—are being persecuted as a group in South Africa. In support of her motion,

Karekezi submitted an affidavit in which she asserted that she feared persecution,

threats, and danger to her family if they are removed to South Africa due to

continued assassinations of Rwandan refugees and xenophobic attacks in South

Africa against immigrants and their families. She also submitted documentary

evidence, including news articles and country reports in support of her claims of

continued attacks against immigrants in South Africa.

The BIA denied the motion, concluding that Karekezi had “raised similar

arguments based on similar evidence in the initial removal proceedings” and failed

to meet her burden of presenting new, material evidence of changed country

conditions that demonstrates, if the proceedings were reopened, the new evidence

would likely change the result. Additionally, the BIA explained that sua sponte

reopening was also not warranted based on Karekezi’s child’s pending Special

Immigrant Juvenile Visa Petition. This appeal followed.

4 Case: 19-14026 Date Filed: 04/16/2020 Page: 5 of 10

II. Discussion

We first review de novo our subject matter jurisdiction. See Amaya-

Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). Generally,

we cannot review decisions that are committed to the discretion of the BIA. See

8 U.S.C. § 1252(a)(2)(B) (providing that no court shall have jurisdiction to review

discretionary denials of relief). The BIA has sua sponte authority to reopen or

reconsider any case in which it has rendered a decision at any time. See 8 C.F.R.

§ 1003.2(a). However, “[t]he decision to grant or deny a motion to reopen . . . is

within the discretion of the [BIA] . . . [and the BIA] has discretion to deny a

motion to reopen even if the party moving has made out a prima facie case for

relief.” Id. Thus, we have repeatedly held that we lack jurisdiction to review a

decision of the BIA not to exercise its authority to reopen proceedings sua sponte.

See, e.g., Butka v. U.S. Att’y Gen., 827 F.3d 1278, 1286 (11th Cir. 2016); Lenis v.

U.S. Att’y Gen., 525 F.3d 1291, 1293–94 (11th Cir. 2008).

Despite this jurisdictional bar, we retain jurisdiction over constitutional

claims and questions of law raised in a petition for review. See 8 U.S.C.

§ 1252(a)(2)(D) (“Nothing in subparagraph (B) or (C), or in any other provision of

this chapter (other than this section) which limits or eliminates judicial review,

shall be construed as precluding review of constitutional claims or questions of law

raised upon a petition for review filed with an appropriate court of appeals in

5 Case: 19-14026 Date Filed: 04/16/2020 Page: 6 of 10

accordance with this section.”); see also Lenis, 525 F.3d at 1294 n.7 (“We note, in

passing, that an appellate court may have jurisdiction over constitutional claims

related to the BIA’s decision not to exercise its sua sponte power.”).

Additionally, we have jurisdiction to review the denial of a motion to reopen

that the BIA denied pursuant to the statutory requirements for a motion to reopen,

even where the BIA also states that it will not exercise its sua sponte authority to

reopen. See Mata v. Lynch, 135 S. Ct. 2150, 2154–55 (2015) (explaining that

“[w]hether the BIA rejects the alien’s motion to reopen because it comes too late

or because it falls short in some other respect, the courts have jurisdiction to review

that decision. Similarly, that jurisdiction remains unchanged if the [BIA], in

addition to denying the alien’s statutorily authorized motion, states that it will not

exercise its separate sua sponte authority to reopen the case.”); see also Bing Quan

Lin v. U.S. Att’y Gen., 881 F.3d 860, 870–71 (11th Cir. 2018) (discussing Mata

and this Court’s jurisdiction in the context of a motion to reopen that was denied

based on statutory grounds as well as the BIA’s refusal to exercise its sua sponte

authority).

The BIA’s denial of a motion to reopen is reviewed for an abuse of

discretion. Ali v. U.S. Att’y Gen, 443 F.3d 804, 808 (11th Cir. 2006). We limit our

review “to determining whether there has been an exercise of administrative

discretion and whether the matter of exercise has been arbitrary or capricious.” Id.

6 Case: 19-14026 Date Filed: 04/16/2020 Page: 7 of 10

(quoting Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005)).

Generally, only one motion to reopen is allowed, and it must be filed within 90

days of the date of the final removal order. See 8 U.S.C. § 1229a(c)(6)(A),

(7)(C)(i). Nevertheless, these time and numerical limitations do not apply if the

purpose of the motion to reopen is to reapply for asylum or withholding of removal

based on material evidence of changed country conditions in the country of

removal that could not have been produced at the previous hearing. Id.

§1229a(c)(7)(C)(ii). However, “[a]n alien cannot circumvent the requirement of

changed country conditions by demonstrating only a change in her personal

circumstances.” Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009).

A motion to reopen “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 U.S.C. § 1229a(c)(7)(A), (B). “The moving party bears a

heavy burden, as motions to reopen are disfavored, especially in removal

proceedings.” Zhang, 572 F.3d at 1319 (internal citations omitted). To meet this

burden, the alien “must present evidence that demonstrates that, if the proceedings

were opened, the new evidence would likely change the result in the case.” Jiang

v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009).

Here, as an initial matter, to the extent Karekezi argues that the BIA abused

its discretion, or otherwise erred, in refusing to exercise its sua sponte authority to

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reopen the proceedings, we lack jurisdiction to review this claim. See Butka, 827

F.3d at 1286; Lenis, 525 F.3d at 1293–94. And while we generally retain

jurisdiction to review constitutional claims, Karekezi has provided no supporting

argument or authority for her contention that the BIA violated her right to

procedural due process. Thus, we conclude she has abandoned this argument.3

See Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1145 (11th Cir. 2010) (“Generally,

when an appellant fails to offer argument on an issue, that issue is deemed

abandoned. Passing references to issues are insufficient to raise a claim for

appeal.”). Accordingly, the portion of her petition challenging the BIA’s refusal to

exercise its sua sponte authority to reopen the proceedings is dismissed.

We do, however, have jurisdiction to review the BIA’s denial of her motion

to reopen based on changed country conditions. See Mata, 135 S. Ct. at 2154–55;

Bing Quan Lin, 881 F.3d at 871. The BIA reviewed the new evidence Karekezi

submitted, but concluded that it did not demonstrate that, if the proceedings were

reopened, the new evidence would likely change the result of the case. This

conclusion was not an abuse of discretion, particularly in light of the fact that

3 Karekezi asserts that she was deprived of procedural due process as “[t]he failure to receive relief, in this case, amounts to a deprivation of a liberty interest.” Notably, even if she had sufficiently raised this claim on appeal, it would fail on the merits, as “[p]rocedural due process claims must assert a deprivation of a constitutionally protected liberty or property interest. And, we have previously held that there is ‘no constitutionally protected interest in purely discretionary forms of relief[,]’” including motions to reopen. Bing Quan Lin, 881 F.3d at 868–69.

8 Case: 19-14026 Date Filed: 04/16/2020 Page: 9 of 10

Karekezi sought asylum and withholding of removal based on similar arguments

and similar evidence during her initial removal proceedings, which the BIA

determined did not establish a well-founded fear of future persecution and we

affirmed. See Karekezi, 380 F. App’x at 818. Karekezi’s supporting affidavit

attached to her motion to reopen does not establish changed country conditions in

South Africa, but instead shows that she faces the same fear of persecution that she

did at the time of her initial removal hearing in 2007. Likewise, the news articles

and other supporting documentation submitted by Karekezi did not demonstrate

changed country conditions.4 Indeed, none of those documents specifically discuss

any violence directed toward Rwandan Hutus in South Africa. Rather, the

documents refer to generalized xenophobic violence against foreign nationals in

South Africa, which the documents indicate has been ongoing since the mid-

1990’s and early 2000’s, with most of the recent violence directed at foreign

nationals from Somalia, Bangladesh, Mozambique, Nigeria, Malawi, and

Zimbabwe. Accordingly, Karekezi’s evidence did not address prevailing

conditions in South Africa with regard to Hutu refugees or their families, much

less evince a change in those conditions. At most, the evidence demonstrated that

4 We note that Karekezi’s child’s pending application for adjustment of status as a special immigrant juvenile could not serve as a change in circumstances for purposes of a motion to reopen the proceedings. See Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009) (“An alien cannot circumvent the requirement of changed country conditions by demonstrating only a change in her personal circumstances.”).

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South Africa continues to experience xenophobic violence, a condition which

existed at the time of Karekezi’s initial removal proceedings. As such, the evidence

failed to demonstrate “that, if the proceedings were opened, the new evidence

would likely change the result of the case.” Jiang, 568 F.3d at 1256–57.

Accordingly, the BIA did not abuse its discretion in denying her third motion to

reopen, and this ground of Karekezi’s petition is denied.

PETITION DISMISSED IN PART AND DENIED IN PART