Nhan Thanh Nguyen v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 7, 2020
• Docket: 19-12709
• Status: Unpublished

Opinion

Case: 19-12709 Date Filed: 04/07/2020 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-12709 Non-Argument Calendar ________________________

Agency No. A088-394-530

NHAN THANH NGUYEN,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(April 7, 2020)

Before GRANT, LAGOA, and HULL, Circuit Judges.

PER CURIAM: Case: 19-12709 Date Filed: 04/07/2020 Page: 2 of 6

Nhan Thanh Nguyen, a native and citizen of Vietnam, seeks review of the

Board of Immigration Appeals (“BIA”) denial of her motion for sua sponte

reopening of her removal proceedings. We dismiss the petition for lack of

jurisdiction.

I.

Nguyen was admitted to the United States in 2009 as a non-immigrant

visitor with authorization to remain until April 4, 2010. In January 2010,

Nguyen’s now ex-husband, Tung Van Dinh, filed an application for asylum, in

which he included Nguyen and their minor son as derivative applicants. On

February 24, 2010, the DHS issued Nguyen a Notice to Appear charging her with

removability under 8 U.S.C. § 1227(a)(1)(B) as an alien who had remained in the

United States longer than permitted.

In February 2011, Nguyen appeared before an immigration judge (“IJ”) with

Dinh and their minor son. They conceded their removability and requested

asylum, withholding of removal, and relief under the United Nations Convention

Against Torture.

In December 2011, Dinh filed an amended application for asylum and

withholding based on his political opinion, again including Nguyen and their minor

son as derivative applicants and attaching evidence that Nguyen had given birth to

a second child in the United States in August 2010. In his December 2011

2 Case: 19-12709 Date Filed: 04/07/2020 Page: 3 of 6

application, Dinh claimed that after the 1975 “event,” the communist Vietnamese

government had imprisoned his father for two years, taken away the family’s

home, and tortured and beat his family because his father had been a police officer

with the former regime. Dinh described his childhood as difficult and

impoverished because of his father’s affiliation with the former government. He

also alleged that after college, he went to work for a corrupt travel company in

Vietnam that was controlled by the communist government. He claimed that the

company was operated as a charitable organization in order to launder money and

steal land from the Catholic church and from private citizens, and that when he

complained about these practices, he was threatened with death.

The U.S. State Department’s 2012 Country Report for Vietnam was

included in the record before the IJ. The 2012 report noted “severe government

restrictions on citizens’ political rights,” corruption in the judicial system and

police, and government corruption related to land use.

The IJ denied Dinh’s application, concluding that he failed to establish past

harm rising to the level of persecution or a well-founded fear of future persecution

in Vietnam. The IJ noted that it was difficult to determine the “real nexus” in

Dinh’s case; Dinh did not appear to oppose communist politics and he was not

being persecuted on account of religion either.

3 Case: 19-12709 Date Filed: 04/07/2020 Page: 4 of 6

Nguyen, Dinh, and their minor son appealed to the BIA. In July 2014, the

BIA dismissed their appeal and affirmed the IJ’s decision for the reasons in that

opinion. Nguyen did not seek review of that dismissal in this Court.

In April 2018, Nguyen filed a motion requesting that the BIA reopen her

removal proceedings sua sponte. 1 See 8 C.F.R. § 1003.2(a) (giving the BIA the

authority, at its discretion, to reopen removal proceedings sua sponte at any time).

Nguyen asserted that she came to the United States fleeing persecution from the

communist party in Vietnam and feared returning to Vietnam because of the lack

of due process for anyone who opposed the government. Relying on a news

article, Ngyuen alleged that 2017 was the worst year in Vietnam for dissidents

because 43 human rights activists were arrested and the government was “cracking

down” on advocates for human rights and democracy. Nguyen included with her

motion a copy of the U.S. State Department’s 2016 Country Report for Vietnam,

which noted continued “severe government restrictions of citizens’ political

rights,” including inadequate protection of citizens’ due process rights.

The BIA denied Nguyen’s motion to reopen, noting that the motion was

filed long past the 90-day deadline for a statutory motion to reopen and that

Nguyen had not shown a material change in conditions in Vietnam that would

excuse the late filing. See 8 U.S.C. § 1229a(c)(7)(C). The BIA also found that

1 The motion to reopen did not include Dinh or their minor son. 4 Case: 19-12709 Date Filed: 04/07/2020 Page: 5 of 6

Nguyen had not established a prima facie case for the relief she was seeking

because she had not adequately explained why she continued to fear persecution in

Vietnam. The BIA concluded that nothing in Nguyen’s motion presented an

exceptional situation that warranted its sua sponte reopening of the proceedings.

II.

We review our jurisdiction over a petition for review de novo. Xiu Ying Wu

v. U.S. Att’y Gen., 712 F.3d 486, 492 (11th Cir. 2013). We lack jurisdiction to

consider an appeal from the BIA’s denial of a motion to reopen removal

proceedings based on its sua sponte authority. Lenis v. U.S. Att’y Gen., 525 F.3d

1291, 1292–93 (11th Cir. 2008).2 We also lack jurisdiction to consider any claim

that an alien failed to present to the BIA, even if the BIA raises and resolves the

issue on its own initiative. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247,

1250–51 (11th Cir. 2006).

We lack jurisdiction to review Nguyen’s claim that the current conditions in

Vietnam constitute “exceptional circumstances” warranting the exercise of the

BIA’s sua sponte power to reopen her removal proceedings. Lenis, 525 F.3d at

1292–93. To extent that Nguyen argues that the BIA should have granted her

2 We have suggested that we may retain jurisdiction to review substantive constitutional claims related to the BIA’s refusal to reopen sua sponte. See Bing Quan Lin v. U.S. Att’y Gen., 881 F.3d 860, 871 (11th Cir. 2018); Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1251 (11th Cir. 2006). But Nguyen raises no such claims here. 5 Case: 19-12709 Date Filed: 04/07/2020 Page: 6 of 6

motion under 8 U.S.C. § 1229a(c)(7) based on changed country conditions, we

lack jurisdiction to review that claim too, because she failed to present it to the

BIA. See Amaya-Artunduaga, 463 F.3d at 1250–51.

Nguyen’s motion did not seek statutory reopening under 8 U.S.C.

§ 1229a(c)(7), and she did not attach affidavits or other evidentiary material as

required for a § 1229a(c)(7) motion. See 8 U.S.C. § 1229a(c)(7)(B). Furthermore,

Nguyen’s motion was not filed within the 90-day time limit for § 1229a(c)(7)

motions, and although she attached a news article stating that 2017 was “the worst

year for Vietnamese dissidents,” she did not argue to the BIA that the article

constituted material evidence of changed country conditions or that her motion

should be considered timely under § 1229a(c)(7)(C)(ii). Instead, Nguyen’s motion

specifically requested that the BIA “exercise its sua sponte power under 8 CFR

§ 1003.2(a) and reopen [her] case.” The fact that the BIA chose to consider on its

own initiative whether Nguyen satisfied the standard for statutory reopening does

not cure Nguyen’s failure to exhaust her administrative remedies or our resulting

lack of jurisdiction. See Amaya-Artunduaga, 463 F.3d at 1250, 1251.

PETITION DISMISSED.