Olukayode Ganiyu Saka v. Eric H. Holder, Jr., United States Attorney General

United States Court of Appeals
For the First Circuit
No. 12-2193
OLUKAYODE GANIYU SAKA,
Petitioner,
v.
ERIC H. HOLDER, JR.,
UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Lipez and Thompson,
Circuit Judges.
Stephen L. Baruffi, on brief for petitioner.
Joanna L. Watson, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Stuart F.
Delery, Principal Deputy Assistant Attorney General, Civil
Division, and Jamie M. Dowd, Senior Litigation Counsel, on brief
for respondent.
December 23, 2013

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TORRUELLA, Circuit Judge. Olukayode Ganiyu Saka ("Saka")
entered the United States using a false name and fraudulently
obtained visa. Upon discovery of this fraud, removal proceedings
commenced. Citing fear of religious persecution, Saka filed for
withholding of removal and protection under the Convention Against
Torture ("CAT"). The Immigration Judge ("IJ"), in a decision later
affirmed by the Board of Immigration Appeals ("BIA"), denied this
relief and ordered removal. Thereafter, the BIA also denied Saka's
motion to reopen, which added a claim for asylum, and his
subsequent motion to reconsider. Saka now appeals. Insofar as it
relates to his motion to reopen, we dismiss this appeal as
untimely. Taking up only his motion to reconsider, we find no
evidence of legal error nor an abuse of discretion, and thus, we
deny Saka's petition for review.
I. Background
A. Removal Proceedings
Saka, a citizen of Nigeria, entered the United States on
June 29, 2002, using a doctored passport and fraudulently obtained
visa bearing the name Olukayode Olapido-Wemimo. Five years later,
still using this false name, Saka filed an application for
naturalization. A close review of his application eventually
revealed Saka's true identity, and the Department of Homeland
Security commenced removal proceedings, alleging that Saka had
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procured admission into the United States by means of fraud or
willful misrepresentation.
During removal proceedings, Saka admitted to falsifying
his entry documents and conceded removability but, citing fear of
persecution in Nigeria based on his 2003 conversion to
Christianity, filed for withholding of removal and CAT relief. 1
Saka, who had been raised as a practicing Muslim, testified that
his conversion had prompted death threats from angry family members
in Nigeria, who believed him an apostate. He suggested that these
threats of violence fit a larger pattern of religious persecution
in which the Nigerian government was acquiescent. Saka did not
seek asylum at this time, informing the IJ that he was aware any
claim would be outside the one-year deadline for asylum petitions.
Ultimately, the IJ determined that Saka's testimony was
not credible given his past use of falsified documents and his
history of making dishonest statements to immigration officials.
The IJ also found insufficient evidence that Christians were
subject to religious persecution in Nigeria based on their beliefs.
Moreover, even had such persecution been proven, the IJ questioned
whether Saka was indeed a practicing Christian. Specifically, the
IJ expressed significant skepticism as to why, although claiming to
have become a devout Christian in 2003, Saka was only baptized in
1 Saka also sought alternative relief in the form of voluntary
departure. The IJ's denial of this request was not appealed and is
not relevant here.
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June 2009 -- three months after removal proceedings began. On
July 9, 2010, the IJ ordered removal. The BIA affirmed.
B. Motion to Reopen
On March 19, 2012, Saka filed a motion to reopen, citing
changed country conditions. In addition to claiming continued
eligibility for withholding of removal and CAT relief, Saka argued
that he was newly eligible for asylum because changed country
conditions constitute an exception to the one-year deadline for
such claims. Saka's motion was supported by evidence purporting to
show increased persecution of Christians in Nigeria. Specifically,
the evidence pertained to the 2009 Boko Haram Uprising, during
which religiously motivated violence left nearly 1,000 Nigerians
dead. Saka also provided affidavits from his minister stating that
he knew Saka to be a practicing Christian, and from a cousin in
Nigeria corroborating Saka's claim that family members remained
angry about his conversion.
The BIA denied this motion, finding that both the
affidavits and the vast majority of news articles provided by Saka
were not newly available, but instead contained information that
could have been provided during his initial proceedings. Even
assuming that the small number of articles that post-dated Saka's
initial proceedings could prove increased persecution, the BIA
again stated that Saka had offered inadequate proof that he "is or
would be perceived to be Christian" if returned. A written order
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denying Saka's motion was published on May 10, 2012. This order,
however, referenced only withholding of removal and CAT relief. No
mention was made of Saka's asylum claim; a mistake that would
become paramount in later stages of these proceedings.
C. Motion to Reconsider
On June 8, 2012, Saka filed a motion to reconsider,
asserting that the BIA had erred by: (1) ignoring accounts of
significantly increased persecution of Christians in Nigeria, (2)
making improper credibility determinations illustrative of an
implicit bias against his claims, and (3) failing to address his
claim for asylum. The BIA denied this motion, affirming its prior
determination that Saka's evidence was not newly available and did
not show that he was, in fact, a devout, practicing Christian. It
also denied making any improper credibility determinations,
reasoning that any evidence discounted in its earlier decision was
ignored solely on the basis that it was not newly available.
In contrast, the BIA admitted that it had erred by
failing to address Saka's asylum claim, but ultimately found this
error harmless. The BIA pointed out that under 8 C.F.R.
§ 1003.2(c)(1) a timely claim for asylum would face the same
standard for reopening as Saka's other claims for withholding of
removal and CAT relief. An untimely application for asylum,
however, would face an even higher burden, requiring proof of
changed country conditions under 8 U.S.C. § 1158(a)(2)(D). Thus,
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having failed to present newly available evidence sufficient to
reopen under the more forgiving standard, the BIA reasoned that
Saka would have necessarily failed to meet the burden for raising
his untimely asylum claim as well. Because the BIA found this
error to lack materiality, it concluded that reconsideration was
unnecessary. A final order denying Saka's motion was entered on
September 4, 2012.
II. Discussion
On October 2, 2012, Saka sought appellate review of both
his motion to reopen and his subsequent motion to reconsider. We
take up each motion in turn.
A. Motion to Reopen
Petitioners seeking review of a final BIA order before
this court must abide by a strict thirty-day filing deadline.
8 U.S.C. § 1252(b)(1); Ven v. Ashcroft, 386 F.3d 357, 359 (1st Cir.
2004). This deadline runs from the time a final order is entered;
subsequent motions before the BIA do not toll or extend it. Zhang
v. INS, 348 F.3d 289, 292 (1st Cir. 2003) (citing Stone v. INS, 514
U.S. 386, 405-06 (1995)). Because this deadline is a jurisdictional
requirement, we are strictly bound to dismiss petitions filed
beyond its outer limit. Ven, 386 F.3d at 359 (citing Zhang, 348
F.3d at 292).
Saka's appeal was filed approximately five months after
the BIA entered a written order denying his motion to reopen, well
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beyond the deadline. Nonetheless, seizing upon the BIA's failure
to explicitly resolve his claim for asylum, Saka argues that we
retain jurisdiction. Citing a Ninth Circuit case, Go v. Holder,
640 F.3d 1047, 1051 (9th Cir. 2011), he argues that motions remain
live so long as any possibility of relief remains. See id.
(finding jurisdiction appropriate despite late filing where, in
ruling on the motion, the BIA remanded one of three claims for
further proceedings). Applying Go's reasoning, Saka theorizes that
the BIA's order denying his motion to reopen was not final because
it did not specifically foreclose his claim for asylum, thus
leaving open some possibility of relief. Under this theory, the
motion to reopen became final only on September 4, 2012, when -- in
ruling on his subsequent motion to reconsider -- the BIA finally
dismissed Saka's asylum claim.
We are unconvinced. Whatever the merits of Go's
reasoning, we are neither bound by its precedent nor unable to
easily distinguish it from the case at hand. Here, no portion of
Saka's claim was remanded for further consideration, and the BIA in
no way indicated that additional proceedings were necessary. In
contrast, the BIA's order unequivocally stated that "[t]he motion
to reopen is denied." This blanket denial is significantly
distinct from the facts of Go, which fit neatly into an
administrative scheme that allows the BIA to "return a case to
. . . an immigration judge for such further action as may be
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appropriate, without entering a final decision on the merits."
8 C.F.R. § 1003.1(d)(7).
Simply put, Saka sought to have his proceedings
reopened, and the BIA definitively declined to do so. Although the
BIA's order failed to make specific mention of Saka's asylum
petition, it clearly intended to issue a final denial of all of his
claims. Indeed, had Saka timely appealed the denial of his motion
to reopen we would have had jurisdiction, if only to remand it to
the BIA to properly address the asylum claim. See Halo v.
Gonzales, 419 F.3d 15, 18-20 (1st Cir. 2005) (finding remand
appropriate where the BIA failed to adequately articulate its
reasons for denying asylum). As such, we find that despite the
BIA's failure to explicitly dismiss Saka's asylum claim, its
May 10, 2012 order did not reasonably suggest any continuing
possibility of relief on this motion to reopen. 2
2 Although the question here involves the finality of an
administrative decision, our precedent regarding finality in the
judicial context is informative. In that posture, we have
recognized that decisions which are ambiguous, Alman v. Taunton
Sportswear Mfg. Corp., 857 F.2d 840, 844 (1st Cir. 1988), or hold
over issues for future consideration, United States v. Metro. Dist.
Comm'n, 847 F.2d 12, 14 (1st Cir. 1988), may not be final. Because
the BIA's order bears no hallmarks of ambiguity and is clearly
intended to fully resolve Saka's petition, see id., this precedent
further supports our holding. Another accepted arbiter of judicial
finality, that there be nothing left to do but execute the
judgment, see State St. Bank & Trust Co. v. Brockrim, Inc., 87 F.3d
1487, 1490 (1st Cir. 1996), also gives credence to our finding.
Had no motion to reconsider been filed from the BIA's denial, Saka
would have become immediately available for removal.
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Moreover, adopting Saka's argument in practice would
render void the rule that subsequent motions before the BIA cannot
toll the thirty-day deadline for judicial appeals. See Zhang, 348
F.3d at 292. It is more than clear that "a motion for
reconsideration posits that the decider -- here, the BIA -- made
some sort of error in the earlier decision." Liu v. Mukasey, 553
F.3d 37, 39 (1st Cir. 2009). Equally well-accepted is that such
error may take the form of "an argument or aspect of the case that
was overlooked." Muyubisnay-Cungachi v. Holder, 734 F.3d 66, 70
(1st Cir. 2013) (emphasis added) (quoting Asemota v. Gonzales, 420
F.3d 32, 33 (1st Cir. 2005)). Thus, motions to reconsider may
commonly proceed on the theory that the agency's prior
determination ignored or omitted some legal claim.
Yet, Saka would have us find that in all such cases the
appeals deadline is held over until that claim is definitively
resolved. While dressed up in the language of finality, what this
argument proposes is no more than a form of tolling. Finality
would come only when the BIA ruled on the subsequent motion to
reconsider, effectively pausing the appeals-deadline clock in the
interim. We refuse to adopt a rule that would wreak such havoc on
the accepted relationship between administrative and judicial
review of immigration proceedings.
Finding that Saka's appeal from the denial of his motion
to reopen is untimely, we dismiss.
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B. Motion to Reconsider
Because Saka's appeal from the denial of his motion to
reconsider is timely, we review it on the merits. 3 We review the
BIA's denial of a motion to reconsider for abuse of discretion.
Nascimiento v. INS, 274 F.3d 26, 28 (1st Cir. 2001); see also
Lasprilla v. Ashcroft, 365 F.3d 98, 99 (1st Cir. 2004). Under this
deferential standard, we uphold decisions unless they are "made
without a rational explanation, inexplicably depart[] from
established policies, or rest[] on an impermissible basis."
Nascimiento, 274 F.3d at 28. Any error of law is, inherently, an
abuse of discretion. Top Entm't, Inc. v. Torrejón, 351 F.3d 531,
533 (1st Cir. 2003).
Saka's main argument on appeal is that the BIA
impermissibly attempted to explain away its failure to resolve his
asylum claim with "post hoc rationalization[s]." He asserts that
3 We do not believe taking up review of the merits in any way
contradicts our recent decision in Charuc v. Holder, No. 13-1504,
2013 WL 6335878 (1st Cir. Dec. 6, 2013). That case found no
jurisdiction to review a motion to reconsider where the underlying
claim for relief -- an untimely motion asking the BIA to employ its
discretionary power to undertake sua sponte review outside the
statutory deadline -- was wholly discretionary. Id. at *2. Where,
as here, we lack jurisdiction over the underlying claim only
because no timely appeal was taken from that decision, not because
the discretionary nature of the relief sought made the agency's
decision unreviewable, we believe our jurisdiction over a timely
appeal from a subsequent motion to reconsider remains. See, e.g.,
Zhang, 348 F.3d at 292 (taking up review of a timely filed appeal
from the denial of a motion to reopen and a motion to reconsider
despite finding a lack of jurisdiction to review the BIA's initial
denial of relief).
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the BIA's determination that its error was immaterial runs afoul of
SEC v. Chenery Corp., 318 U.S. 80 (1943), which requires that
agency determinations clearly delineate the basis for their
holdings. In support of this theory, Saka cites a number of our
opinions remanding issues to the BIA for failure to clearly
substantiate a legal basis for its decision. See, e.g., Seong v.
Holder, 677 F.3d 484, 489 (1st Cir. 2012); Kadri v. Mukasey, 543
F.3d 16, 21-22 (1st Cir. 2008).
We reject this argument, as it significantly misconstrues
the applicability of these cited holdings to the instant case.
Without a doubt, judicial review is predicated on the requirement
that "agencies provide reasoned bases for their decision[s]."
Albathani v. INS, 318 F.3d 365, 377 (1st Cir. 2003) (citing Chenery
Corp., 318 U.S. at 196-97). This case, however, presents no
question concerning the scope of judicial review. The issue on
appeal focuses on whether the BIA acted appropriately in resolving
an error originating from an earlier BIA decision. The holding of
Chenery Corp. simply does not govern an administrative agency's
review of its own prior decision. Cf. Lasprilla, 365 F.3d at 100
(holding that the BIA need not even "explain its reasons when
deciding a motion to reconsider"); Albathani, 318 F.3d at 377
(holding that, so long as a rational basis was set forth in some
stage of agency proceedings, the BIA may affirm IJ decisions
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without an opinion). 4 Therefore, we find no indication that the
BIA's decision to assess the materiality of its prior error in
ruling on a motion to reconsider was, itself, in error. See Liu,
553 F.3d at 40 (finding the denial of a motion to reconsider
appropriate based on petitioner's "fail[ure] to identify any
material error of law or fact in the earlier decision").
Next, we turn to whether the BIA's ultimate conclusion
was an abuse of discretion. Noting that "the purpose of a motion
to reconsider is not to raise new facts," Zhang, 348 F.3d at 293,
we see no such abuse in the BIA's materiality analysis. Where
legal claims are predicated on identical facts and are reviewed
under the same standard, it is more than reasonable to hold that
where one claim falls, the other falls with it. See, e.g., Amouri
v. Holder, 572 F.3d 29, 35 (1st Cir. 2009). Having affirmed its
earlier determination regarding Saka's failure to present new
evidence, 5 the BIA noted that -- at a minimum -- Saka's claim for
4 It is unclear whether Saka is now attempting to construe his
motion to reconsider as a sort of motion to remand. As a practical
matter, however, any such attempt is inapt. Saka never brought his
asylum petition before the IJ; it was filed initially with the BIA
as part of his motion to reopen. Moreover, motions to remand are
generally based on the presentation of new evidence, and are
consequently treated by our court as motions to reopen. Morgan v.
Holder, 634 F.3d 53, 60 (1st Cir. 2011). Therefore, even were such
an alteration possible, not only would our review still proceed
under an abuse-of-discretion standard, see id. at 61, but Saka
would face the numerical bar applicable to such motions, Raza v.
Gonzales, 484 F.3d 125, 127 (1st Cir. 2007).
5 Because our focus is limited to Saka's motion to reconsider, we
do not directly review the BIA's determination, made in its denial
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asylum would have faced the same standard for reopening that his
other claims had already failed. See 8 C.F.R. § 1003.2(c)(1). More
precisely, the BIA reasoned, the standard for his asylum claim
would actually be stricter, given that it had not been filed during
initial proceedings and was admittedly untimely. See 8 U.S.C.
§ 1158(a)(2)(D). Far from irrational, the BIA's conclusion appears
to have fully considered and reasonably applied the relevant legal
standards. Thus, we are untroubled by the BIA's decision to
resolve Saka's claim of legal error without reconsideration.
Saka's final two claims of error we reach only briefly,
as they are clearly not meritorious. First, he attempts to
construct legal error from the BIA's refusal to apply Ninth Circuit
precedent to this case. This argument lacks foundation. Although
the BIA could have chosen to seek interpretative guidance from our
sister circuits, the decision not to do so is no way an error of
law, much less an abuse of discretion. See Kechichian v. Mukasey,
535 F.3d 15, 22 (1st Cir. 2008).
We similarly find lacking Saka's claim that the BIA
demonstrated an implicit bias against him by neglecting evidence
and undertaking improper credibility determinations. For one, we
disagree that the BIA was incorrect to refer to Saka's supplemental
affidavits and corrected I-589 as "The Corrected Mistakes." A
of Saka's motion to reopen, that he did not present newly available
evidence.
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simple review of the administrative record makes clear that Saka
himself, in filing these documents, titled them "The Corrected
Mistakes." While we doubt such terminology would substantiate an
abuse of discretion regardless, we are more than certain it does
not do so here.
For another, we reject Saka's suggestion that the BIA, by
referencing the IJ's adverse credibility determination, made an
improper factual finding. This argument starts from the flawed
premise that the BIA had previously rejected the IJ's adverse
credibility determination. Even a cursory review of the record
reveals that is not the case. The BIA, in its initial opinion
affirming the IJ, simply did not reach the issue of credibility,
finding sufficient other reasons to dismiss. No later opinion
questioned the IJ's determination, and the BIA did not err by
referencing this settled finding when considering whether its
motion to reopen had given proper weight to Saka's evidence.
III. Conclusion
For the reasons stated herein, Saka's petition to review
his motion to reopen is dismissed, and the petition to review his
motion to reconsider denied.
Denied.
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