Kwame Dwumaah v. Attorney General United States , 628 F. App'x 121 ( 2015 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-2283
___________
KWAME DWUMAAH,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A075-462-772)
Immigration Judge: Honorable Roxanne C. Hladylowycz
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 7, 2015
Before: CHAGARES, JORDAN and NYGAARD, Circuit Judges
(Opinion filed: October 13, 2015 )
___________
OPINION*
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Pro se petitioner Kwame Dwumaah petitions for review of the order of the Board
of Immigration Appeals (BIA) denying his motion for reconsideration. We will deny the
petition in part and dismiss it in part.
Dwumaah is a citizen of Ghana. In 2007, an Immigration Judge (IJ) ordered his
removal to Ghana on the ground that he falsely represented himself to be a United States
citizen in his student-loan applications. See 8 U.S.C. § 1227(a)(3)(D)(i). The BIA
dismissed his appeal on the merits. We denied his petition for review because substantial
evidence supported the IJ’s finding that Dwumaah had made the representations. See
Dwumaah v. Att’y Gen., 609 F.3d 586, 589-90 (3d Cir. 2010) (per curiam).
Dwumaah has since repeatedly asked the BIA to reopen or reconsider its removal
order. As relevant here, in November 2014, Dwumaah filed a motion to reopen, arguing
that the BIA should reopen the case and remand it to the IJ so that he could apply for
naturalization. The BIA denied that motion on February 27, 2015. The BIA concluded
that the motion was untimely, number-barred, and did not implicate any of the exceptions
to those limits. Moreover, the BIA concluded that, “[n]otwithstanding the respondent’s
proffer, he has not demonstrated eligibility for any relief from removal nor any basis
upon which to disturb our prior decision.” A.R. at 14.
Dwumaah then asked the BIA to reconsider its denial of reopening. He argued
that the BIA had improperly failed to consider his argument that he was entitled to relief
under this Court’s decision in Guzman v. Attorney General, 770 F.3d 1077 (3d Cir.
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2014). The BIA denied Dwumaah’s motion to reopen on April 27, 2015, ruling that it
did “not find any error in law or fact that would warrant further consideration of this
decision.” A.R. at 2. Dwumaah filed a petition for review to this Court on May 21,
2015.
Dwumaah’s petition for review is timely as to the BIA’s denial of his motion for
reconsideration, but not the BIA’s denial of his motion to reopen. See 8 U.S.C.
§ 1252(b)(1). Thus, we have jurisdiction under 8 U.S.C. § 1252 to review only the BIA’s
denial of the motion for reconsideration. See Stone v. INS, 514 U.S. 386, 405 (1995).
Nevertheless, determining whether the BIA abused its discretion in denying
reconsideration “requires some review of [its] underlying decision” denying Dwumaah’s
motion to reopen. Castro v. Att’y Gen., 671 F.3d 356, 364 (3d Cir. 2012) (quoting
Esenwah v. Ashcroft, 378 F.3d 763, 765 (8th Cir. 2004)). As discussed in more detail
below, we lack jurisdiction to the extent that the BIA’s ruling implicates its discretion to
deny reopening sua sponte. See generally Calle–Vujiles v. Ashcroft, 320 F.3d 472, 475
(3d Cir. 2003). To the extent that we have jurisdiction, we review the BIA’s denial of
reconsideration for only abuse of discretion. See Pllumi v. Att’y Gen., 642 F.3d 155, 158
(3d Cir. 2011).
The BIA did not abuse its discretion here. Dwumaah’s motion to reopen was
plainly time- and number-barred. As a general rule, an alien may file only one motion to
reopen and must do so within 90 days of the date of the final administrative decision. See
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8 U.S.C. § 1229a(c)(7)(A), (C)(i). The final order of removal in Dwumaah’s case was
entered, at the latest, in January 2014; thus, Dwumaah filed his November 2014 motion
to reopen, which was at least his second such motion, outside the 90-day period.
Dwumaah argued in his motion to reopen and his motion for reconsideration that
those procedural requirements should have been relaxed because this Court recognized a
new rule of law in Guzman. Even assuming that a new rule could have this effect, but
see 8 C.F.R. § 1003.2(c)(3) (listing exceptions to the time and numerical limitations), we
did not announce a new rule in Guzman. Rather, we reaffirmed our prior decision in
Zegrean v. Attorney General, 602 F.3d 273 (3d Cir. 2010), upholding the BIA’s
conclusion that an IJ could terminate removal proceedings under 8 C.F.R. § 1239.2(f) to
allow an alien to seek naturalization only if the Department of Homeland Security (DHS)
had first “attested to an alien’s prima facie eligibility for naturalization, through an
affirmative communication.” Guzman, 770 F.3d at 1089. We also observed that the
alien’s request to have his removal proceedings terminated was further undermined by his
failure to file an application for naturalization in his local USCIS field office. See id.
However, we did not suggest that filing such an application creates an entitlement to
relief; instead, the attestation from DHS remains a necessary prerequisite. See id.
Accordingly, Guzman did not create a new rule, and the BIA did not err in deeming
Dwumaah’s motion to reopen time- and number-barred or in denying his motion for
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reconsideration.1
Dwumaah argues that the BIA should have reopened the removal order sua sponte.
As noted above, we generally lack jurisdiction to review the BIA’s decision declining to
exercise its discretion to reopen or reconsider the case. See Calle–Vujiles, 320 F.3d at
475. We have recognized two exceptions: we may consider whether the BIA’s decision
“is based on a false legal premise,” Pllumi, 642 F.3d at 160, or whether the BIA has
“restricted the exercise of its discretion by establishing a ‘general policy’ of reopening
sua sponte” under specific circumstances, Cruz v. Att’y Gen., 452 F.3d 240, 249 (3d Cir.
2006). These considerations apply even though we are reviewing the BIA’s refusal to
reconsider its denial of reopening sua sponte rather than the denial of reopening itself.
See Charuc v. Holder, 737 F.3d 113, 115 (1st Cir. 2013).
Neither exception applies here. The BIA did not rely on a false legal premise; it
accurately summarized the standards for motions to reopen and reconsider, and correctly
concluded that Dwumaah had not demonstrated any basis for relief from removal. Nor
has Dwumaah established that the BIA maintains a “general policy” of reopening sua
sponte in the circumstances present here. While the BIA has recognized that it will
sometimes elect to reopen sua sponte when there has been a “fundamental change in the
law,” In re G-D-, 22 I. & N. Dec. 1132, 1135 (BIA 1999) (en banc), as noted above,
1
We note that in an order dated January 22, 2014, the BIA refused to terminate the
removal proceedings so that Dwumaah could pursue naturalization. In so ruling, the BIA
specifically stated that Dwumaah had “identifie[d] no affirmative declaration from the
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Guzman did not bring about such a change. Therefore, we lack jurisdiction to review the
BIA’s denial of the motion for reconsideration to the extent that it concerned the BIA’s
refusal to reopen sua sponte, and we will dismiss the petition for review insofar as it
challenges this aspect of the BIA’s decision.
Accordingly, we will dismiss Dwumaah’s petition for review in part and deny it in
part. Dwumaah’s motion to expand the record is denied. See 8 U.S.C. § 1252(b)(4)(A)
(“the court of appeals shall decide the petition only on the administrative record on which
the order of removal is based”).2
DHS concerning his prima facie eligibility.” A.R. at 289.
2
We note that the documents that Dwumaah seeks to enter into the record do not amount
to an “affirmative communication” from DHS that “attest[]” to his “prima facie eligibility
for naturalization.” Guzman, 770 F.3d at 1089
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