Deqa Yusuf v. Merrik B. Garland ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-2316
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Deqa Mohamed Yusuf
lllllllllllllllllllllPetitioner
v.
Merrick B. Garland, Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: April 15, 2021
Filed: August 9, 2021
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Before KELLY, GRASZ, and KOBES, Circuit Judges.
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KELLY, Circuit Judge.
Deqa Mohamed Yusuf was lawfully admitted to the United States as a refugee
in 1998 but never naturalized. In 2012, she pleaded guilty to unintentional second-
degree felony murder and was ordered removed to Somalia as a result of the
conviction. See Minn. Stat. § 609.19, subdiv. 2(1) (1998); 8 U.S.C.
§ 1227(a)(2)(A)(iii). Yusuf later filed two successive motions to reopen her
immigration proceedings, one before the Immigration Judge (IJ) and the other before
the Board of Immigration Appeals (BIA). Both were denied. She now petitions for
review of the BIA’s denial of her second motion.
I.
Yusuf’s removal proceedings took place in 2018, while she was still serving
her term of imprisonment in the custody of the Minnesota Department of Corrections.
The proceedings were conducted telephonically, and Yusuf appeared pro se. On
March 21, 2018, the IJ entered a final order of removal, and Yusuf waived her right
to appeal. But ten months later, she filed a motion seeking to reopen her case in order
to apply for deferral of removal under the Convention Against Torture (CAT) and for
other related relief. The IJ denied the motion, and the BIA affirmed.
After obtaining counsel, Yusuf filed a second motion to reopen with the BIA
on November 27, 2019. In this second motion, she sought to reopen removal
proceedings on the basis of changed country conditions in Somalia or, in the
alternative, pursuant to the BIA’s sua sponte authority. In support of her request for
sua sponte reopening, Yusuf argued that she was denied a fair removal hearing
because she was under the influence of methamphetamine at the time and thus
incompetent to proceed.
The BIA deemed the second motion to reopen time barred and, on the issue of
competency, determined that Yusuf did not “present[] evidence contemporaneous
with her hearing to establish that she was intoxicated” and accordingly “has not
established that she was denied a fundamentally fair hearing.” Yusuf argues that the
BIA abused its discretion in denying the motion to reopen.
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II.
A motion to reopen generally must be filed within 90 days of the date of the
final order of removal. See 8 C.F.R. § 1003.2(c)(2). Yusuf’s second motion, filed
almost two years after the final order of removal, was therefore presumptively
untimely. “But the untimeliness of a motion to reopen may be excused if a petitioner
shows changed country conditions based on evidence not previously available and
if [s]he makes a prima facie showing that, if reopened, h[er] case would lead to
relief.” Sharif v. Barr, 965 F.3d 612, 618 (8th Cir. 2020) (cleaned up) (quoting
Rivera-Guerrero v. Barr, 926 F.3d 1050, 1052 (8th Cir. 2019) (per curiam)); see 8
C.F.R. §§ 1003.2(c)(3)(ii), 1003.23(b)(4)(i).
We review the BIA’s denial of a motion to reopen for an abuse of discretion.1
Ahmed v. Barr, 973 F.3d 922, 929 (8th Cir. 2020). The BIA “abuses its discretion
only when its decision is without rational explanation, departs from established
policies, invidiously discriminates against a particular race or group, or where the
agency fails to consider all factors presented by the [noncitizen] or distorts important
aspects of the claim.” Id. at 929 (cleaned up) (quoting Lee v. Holder, 765 F.3d 851,
855 (8th Cir. 2014)).
Yusuf argues that Somalia has become increasingly unsafe since 2018 and that
as a gay woman and a recent convert to Christianity she faces a high likelihood of
torture there. The BIA reviewed the evidence she submitted with her motion to
reopen and supplemental brief and determined that it “demonstrates a continuation
of country conditions, as opposed to materially changed circumstances within the
1
The government argues that Yusuf’s felony conviction prevents us from
reviewing her factual challenges to the BIA’s decision. But under Nasrallah v. Barr,
140 S. Ct. 1683 (2020), we may review both factual and legal challenges raised in a
noncitizen’s appeal of the denial of a motion to reopen seeking to apply for relief
under the CAT. See Sharif, 965 F.3d at 619, 621–22.
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meaning of 8 C.F.R. § 1003.2(c)(3)(ii).” Having reviewed Yusuf’s proffered
evidence, including her affidavit and several news articles, we discern no abuse of
discretion in the BIA’s assessment that the evidence unfortunately “shows that the
poor conditions facing gays and Christians in Somalia have remained substantially
similar since the time of [her] hearing” and that reopening was not warranted on the
basis of changed country conditions.
Yusuf also argues that the BIA erred when it did not sua sponte reopen her
case. See In re J-J-, 21 I. & N. Dec. 976, 984 (B.I.A. 1997) (“[T]he [BIA] retains
limited discretionary powers under the regulations to reopen or reconsider cases on
our own motion . . . in exceptional situations.”); 8 C.F.R. § 1003.2(a) (establishing
the BIA’s “discretion” to grant or deny a motion to reopen). But whether to reopen
proceedings pursuant to 8 C.F.R. § 1003.2(a) is a decision “committed to agency
discretion by law” that we lack jurisdiction to review. Tamenut v. Mukasey, 521 F.3d
1000, 1005 (8th Cir. 2008) (en banc) (per curiam). We do, however, generally “have
jurisdiction over any colorable constitutional claim.” Tamenut, 521 F.3d at 1005; see
Chong Toua Vue v. Barr, 953 F.3d 1054, 1057 (8th Cir. 2020).
In support of her petition for review, Yusuf argues she was denied a fair
hearing. See Al Khouri v. Ashcroft, 362 F.3d 461, 464 (8th Cir. 2004) (holding that
the Fifth Amendment’s Due Process Clause demands “that removal hearings be
fundamentally fair”). According to Yusuf, the underlying proceedings were
fundamentally unfair because she was “high on meth” and thus incompetent at the
time of her removal hearing. Although this claim may be sufficiently colorable to
invoke our jurisdiction, Yusuf has not shown “both a fundamental procedural error
and resulting prejudice,” as is required to establish a due process violation in this
context. Freeman v. Holder, 596 F.3d 952, 957 (8th Cir. 2010) (quoting Kipkemboi
v. Holder, 587 F.3d 885, 890 (8th Cir. 2009)); see Mutie-Timothy v. Lynch, 811 F.3d
1044, 1049 (8th Cir. 2016) (denying petition for review of noncitizen’s due process
claim where she may have raised “a colorable constitutional claim sufficient to confer
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jurisdiction” but failed to show “both a fundamental procedural error and prejudice
as a result of the error” (quoting Camishi v. Holder, 616 F.3d 883, 886 (8th Cir.
2010))). Nothing in the record suggests the IJ would have had any indication that
Yusuf, who was incarcerated at the time, was intoxicated or otherwise unable to
understand the proceedings. And “[a]bsent indicia of mental incompetency, an [IJ]
is under no obligation to analyze a[] [noncitizen’s] competency.” Matter of M-A-M-,
25 I. & N. Dec. 474, 477 (B.I.A. 2011) (“[A] [noncitizen] is presumed to be
competent to participate in removal proceedings.”); cf. Munoz-Monsalve v. Mukasey,
551 F.3d 1, 6 (1st Cir. 2008) (holding that noncitizen’s due process rights were not
violated by IJ’s decision not to order a competency evaluation where the noncitizen
did not request a competency evaluation, the noncitizen did not “bring the possibility
of incompetence to the attention of the [IJ],” and “[t]he record contain[ed] no
significantly probative evidence of any lack of competency”); Barker v. Att’y Gen.
of U.S., 613 F. App’x 197, 202 (3d Cir. 2015) (concluding that petitioner’s due
process rights were not violated where the record contained no “indicia of
incompetency that should have triggered greater scrutiny of Barker’s competency
from the IJ”). Accordingly, we deny the petition for review with respect to Yusuf’s
due process claim.
III.
For these reasons, we deny the petition for review.2
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2
We deny the government’s motion to dismiss the appeal as moot on the
grounds that Yusuf, who has already been removed to Somalia, has since left Somalia
for a third country. As an initial matter, the record on this issue is entirely
undeveloped. Moreover, the government concedes that Yusuf’s removal to Somalia
does not by itself moot her claim for CAT relief, and it has not cited to any authority
that suggests her temporary flight to a third country moots her claim for protection
under the CAT.
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