Seydou Wane v. Attorney General United States of America

• Court: Court of Appeals for the Third Circuit
• Decided: September 16, 2024
• Docket: 23-3229
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 23-3229 ____________

SEYDOU NOUROU WANE, Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA ____________

On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A098-582-862) ____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) September 13, 2024 ____________

Before: CHAGARES, Chief Judge, ROTH and RENDELL, Circuit Judges

(Filed: September 16, 2024)

____________

OPINION* ____________

CHAGARES, Chief Judge.

* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. Seydou Nourou Wane petitions for review of an order of the Board of Immigration

Appeals (“BIA”) denying a motion to reopen. For the reasons that follow, we will deny

the petition for review.

I.1

Wane is a native and citizen of Mauritania who has been in the United States since

overstaying a visa in 2003. An Immigration Judge denied his application for asylum and

related relief in late 2005 and the BIA dismissed his appeal.

Wane filed his first motion to reopen in 2007, seeking to pursue an application for

adjustment of status based upon his marriage to a United States citizen. The BIA denied

the motion. Wane moved for reconsideration but, because he attempted to present

additional evidence, the BIA interpreted the motion as a second motion to reopen and

denied it as time- and number-barred.2

Wane filed another motion to reopen in 2021, seeking to pursue adjustment of

status based on an approved self-petition as the spouse of the United States citizen who

has been subject to abuse under the Violence Against Women Act (“VAWA”). The BIA

denied the motion.

Wane filed the motion to reopen that is the subject of this petition for review in

August 2022, again claiming that he is entitled to reopening based on an approved

VAWA self-petition. The BIA determined that the motion was time- and number-barred.

1 We write for the parties and therefore recite only those facts pertinent to our decision. 2 Wane petitioned our Court for review of the BIA’s initial decision denying relief, its denial of reopening, and its denial of reconsideration. We consolidated the three petitions and denied them. See Wane v. Att’y Gen., 475 F. App’x 448, 454 (3d Cir. 2012). 2 See 8 U.S.C. §§ 1229a(c)(7)(A), (C)(iv)(III). The BIA declined to waive the time

limitation because it determined that Wane failed to establish extraordinary

circumstances as required by the statute. The BIA observed that the mental health issues

Wane described in his motion “arose w[e]ll beyond the 1-year filing deadline and they

appear to have no relation to the motion not being filed by the deadline.” Appendix

(“App.”) 5. The BIA also concluded that, as it was Wane’s second motion based on his

VAWA self-petition, the motion was subject to the statutory numeric bar.3 The BIA

therefore denied the motion to reopen. This timely petition for review followed.

II.4

Motions to reopen are disfavored and are granted only under compelling

circumstances. Darby v. Att’y Gen., 1 F.4th 151, 159 (3d Cir. 2021). We review the

BIA’s denial of a motion to reopen for abuse of discretion. Sevoian v. Ashcroft, 290 F.3d

166, 174 (3d Cir. 2002). The decision will be reversed only if it is arbitrary, irrational, or

contrary to law. Id.

Under VAWA, an individual who is an abused spouse generally has one year in

which to file a motion to reopen removal proceedings. 8 U.S.C.

§ 1229a(c)(7)(C)(iv)(III); see also Yasin v. Att’y Gen., 20 F.4th 818, 822 (3d Cir. 2021).

3 The BIA also determined that Wane did not establish exceptional circumstances warranting sua sponte reopening. We generally lack jurisdiction to review the denial of sua sponte reopening, see Pllumi v. Att’y Gen., 642 F.3d 155, 159 (3d Cir. 2011), and Wane does not present any claims concerning the denial of sua sponte reopening in any event. We therefore will not consider that issue. 4 The BIA had jurisdiction over the motion to reopen under 8 C.F.R. § 1003.2. We generally have jurisdiction to review the denial of a motion to reopen under 8 U.S.C. § 1252(a)(1). See Khan v. Att’y Gen., 691 F.3d 488, 492 (3d Cir. 2012). 3 The one-year period may be waived if the individual demonstrates extraordinary

circumstances. 8 U.S.C. § 1229a(c)(7)(C)(iv)(III) (“[T]he Attorney General may, in the

Attorney General’s discretion, waive this time limitation in the case of an alien who

demonstrates extraordinary circumstances. . . .”). The statute permits one VAWA motion

to reopen. Id. § 1229a(c)(7)(A).

Wane contends that the BIA did not properly consider his claim that the one-year

filing deadline should be waived due to extraordinary circumstances. He argues that the

BIA should have addressed his claim in more detail in order to show the specific set of

facts that it applied to the legal standard. He also claims that the BIA committed legal

error because the statute does not require that the extraordinary circumstances must arise

within the one-year deadline.

We generally lack jurisdiction to review a discretionary decision to refuse to waive

the time limitation for filing a VAWA motion to reopen. Yasin, 20 F.4th at 822–23. Yet

we retain jurisdiction over questions of law. Id. at 823. Even if we accept that Wane has

presented legal questions relating to the timeliness of his VAWA motion over which we

have jurisdiction, Wane’s petition lacks merit.

The motion was Wane’s second motion to reopen based on his approved VAWA

self-petition. It therefore was numerically barred. See 8 U.S.C. § 1229a(c)(7)(A). Wane

does not directly address the numeric bar. He instead observes that VAWA is worded

broadly, such that “any” limitation “shall not apply” if extraordinary circumstances exist.

Wane Br. 14. Yet the “any limitation” language expressly applies to “deadlines” for

filing motions to reopen. 8 U.S.C. § 1229a(c)(7)(C)(iv). Wane does not demonstrate that

4 this language extends to the numeric bar, which appears elsewhere in the statute and

limits an applicant to a single VAWA motion to reopen. 8 U.S.C. § 1229a(c)(7)(A) (“An

alien may file one motion to reopen proceedings under this section, except that this

limitation shall not apply so as to prevent the filing of one motion to reopen described in

subparagraph (C)(iv).” (emphasis added)).

Wane thus has failed to persuade us that the BIA abused its discretion in denying

the motion to reopen as numerically barred. Because that issue is dispositive, we need

not reach Wane’s remaining claims. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976)

(“As a general rule courts and agencies are not required to make findings on issues . . .

unnecessary to the results they reach.”).

III.

For the foregoing reasons, we will deny the petition for review.