Alieu Jatta v. Jefferson B. Sessions, III , 698 F. App'x 818 ( 2017 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0368n.06
No. 16-3019
FILED
UNITED STATES COURT OF APPEALS Jun 26, 2017
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
ALIEU JATTA, )
)
Petitioner, )
) ON PETITION FOR REVIEW
v. ) FROM THE UNITED STATES
) BOARD OF IMMIGRATION
JEFFERSON B. SESSIONS, III, Attorney ) APPEALS
General, )
)
Respondent. )
)
BEFORE: BOGGS, GRIFFIN, and WHITE, Circuit Judges.
PER CURIAM. Alieu Jatta petitions this court for review of an order of the Board of
Immigration Appeals (BIA) dismissing his appeal from the denial of his third motion to reopen
his removal proceedings. As set forth below, we deny in part and dismiss in part Jatta’s petition.
Jatta, a native and citizen of The Gambia, entered the United States in June 2009 as a
nonimmigrant visitor for pleasure with authorization to remain for six months. In January 2011,
the Department of Homeland Security arrested Jatta and served him with a notice to appear in
removal proceedings, charging him with remaining in the United States for a time longer than
permitted. See 8 U.S.C. § 1227(a)(1)(B). Jatta appeared before an immigration judge (IJ) and
conceded removability as charged. On February 1, 2011, the IJ granted Jatta’s request for pre-
conclusion voluntary departure in lieu of removal.
Approximately two months later, on March 31, 2011, Jatta filed a motion to reopen his
removal proceedings based on changed circumstances. Jatta asserted that he had recently learned
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that his uncle, Malaine Ken Njai, had been granted asylum based on Njai’s opposition to the
current Gambian ruling party and that his close relationship with Njai would make him a target if
he returned to The Gambia. The IJ denied Jatta’s motion to reopen for the following reasons:
(1) he failed to submit any evidence that Njai was in fact his uncle; (2) he failed to establish that
this information was not available or could not have been discovered or presented at a prior
hearing; and (3) he failed to demonstrate prima facie eligibility for asylum, withholding of
removal, or protection under the Convention Against Torture. On appeal, the BIA concluded
that Jatta’s handwritten declaration referring to Njai as his uncle constituted some evidence of
the familial relationship but alone was insufficient to make a prima facie showing of the claimed
relationship. The BIA affirmed the IJ’s overall determination and dismissed Jatta’s appeal. Jatta
filed an untimely petition for review, which this court dismissed for lack of jurisdiction. Jatta v.
Holder, No. 11-4109 (6th Cir. Feb. 21, 2012) (order).
In August 2014, Jatta filed a second motion to reopen, this time asserting that he had
married a United States citizen whose I-130 petition for alien relative had been approved and that
he was eligible to apply for adjustment of status. The IJ denied Jatta’s motion to reopen as time-
and number-barred. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.23(b)(1). The IJ also
noted that Jatta failed to attach an application for adjustment of status to his motion as required
by 8 C.F.R. § 1003.23(b)(3). To the extent that Jatta requested that the IJ exercise her sua sponte
authority to reopen removal proceedings, the IJ declined that request because he failed to
substantiate his after-the-fact marriage, noting that Jatta did not “even allege a date of marriage.”
Jatta did not appeal the IJ’s decision and instead filed a third motion to reopen in January
2015. Jatta again asserted that he was eligible to apply for adjustment of status based on the
approved visa petition filed by his United States citizen wife. Denying Jatta’s motion to reopen,
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the IJ noted that his motion was “nearly identical to his second motion to reopen” and that he had
“again failed to address the critical issue” that his motion was both time- and number-barred.
The IJ therefore construed Jatta’s motion as a request to exercise her sua sponte authority to
reopen removal proceedings. The IJ concluded that Jatta’s attachments to his motion did not
alter her prior opinion that his situation did not warrant the exercise of that authority, stating that
his incomplete application for adjustment of status failed to establish his prima facie eligibility
for relief and that Jatta’s inclusion of his marriage certificate did not sufficiently substantiate his
after-the-fact marriage. The BIA dismissed Jatta’s appeal from the IJ’s decision. The BIA
agreed that Jatta’s motion to reopen was both time- and number-barred and that he had
“presented insufficient evidence of circumstances that would justify a discretionary grant of his
untimely motion to reopen and the extraordinary remedy of reopening his removal proceedings
sua sponte.”
This timely petition for review followed. Jatta argues that, in upholding the IJ’s denial of
his motion to reopen, the BIA (1) violated his due-process rights in light of his bona fide
application for adjustment of status and approved I-130 petition and (2) erred in failing to
properly and fully analyze his eligibility for adjustment of status.
“Where, as here, the BIA issues its own decision rather than summarily affirming the IJ,
the BIA decision is reviewed as the final agency decision, but the IJ’s decision is also reviewed
to the extent that the BIA adopted it.” Harmon v. Holder, 758 F.3d 728, 732 (6th Cir. 2014).
We review the denial of a motion to reopen for abuse of discretion. Tapia-Martinez v. Gonzales,
482 F.3d 417, 421 (6th Cir. 2007).
The BIA agreed with the IJ that Jatta’s motion to reopen was time- and number-barred.
With certain exceptions that do not apply here, an alien may file one motion to reopen removal
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proceedings and must file the motion within 90 days of the date of entry of a final administrative
order of removal. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.23(b)(1). Jatta’s motion to
reopen was his third motion and was filed nearly four years after the final administrative order.
By failing to address these procedural grounds for denying his motion to reopen, Jatta has
abandoned any challenge to the denial of his motion as time- and number-barred. See Hih v.
Lynch, 812 F.3d 551, 556 (6th Cir. 2016).
Jatta’s arguments challenge only the BIA’s refusal to exercise its sua sponte authority to
reopen. See Rais v. Holder, 768 F.3d 453, 459 (6th Cir. 2014) (recognizing that, because the
petitioner did not dispute that his motion to reopen was time- and number-barred or assert that he
qualified for an exception to the filing requirements, “the BIA’s sua sponte authority to reopen
removal proceedings was the only means by which he could have obtained relief”). We have
held that “the BIA’s exercise of its sua sponte authority ‘is committed to [its] unfettered
discretion . . . and therefore is not subject to judicial review.’” Id. at 463 (quoting Barry v.
Mukasey, 524 F.3d 721, 723 (6th Cir. 2008)). We therefore lack jurisdiction to review Jatta’s
arguments, including his purported due-process claim. See id. at 464.
For these reasons, we DENY in part and DISMISS in part Jatta’s petition for review.
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