Garmei Kennedy v. Atty Gen USA

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MANDATE ISSUED, filed.

Garmei Kennedy v. Atty Gen USA

Doc. 0 Att. 1

Case: 09-3377

Document: 003110317013

Page: 1

Date Filed: 10/18/2010

N O T PRECEDENTIAL U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT ___________ N o . 09-3377 ___________ G A R M E I MARIE KENNEDY, Petitioner v. A T T O R N E Y GENERAL OF THE UNITED STATES, Respondent ____________________________________ O n Petition for Review of an Order of the B o a rd of Immigration Appeals (A g e n c y No. A078-210-436) Im m ig ra tio n Judge: Honorable Annie S. Garcy _______________________________________ S u b m itte d Pursuant to Third Circuit LAR 34.1(a) A u g u s t 25, 2010 B e f o re : SCIRICA, SMITH and WEIS, Circuit Judges (O p in ion Filed: August 27, 2010) ____________ OPINION ____________ P E R CURIAM. G a rm e i Marie Kennedy petitions for review of an order of the Board of Im m ig ra tio n Appeals ("BIA") denying her motion to reopen her removal proceeding. We w ill dismiss the petition. 1

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Case: 09-3377

Document: 003110317013

Page: 2

Date Filed: 10/18/2010

I. K e n n e d y is a citizen of Liberia. An Immigration Judge ("IJ") denied her claim s for asylum and other forms of relief and ordered her removal to Liberia. The IJ c o n c lu d e d that Kennedy voluntarily assisted in the persecution of others while in Liberia a n d is thus ineligible for asylum or withholding of removal under the so-called " p e rs e c u to r bar." See 8 U.S.C. §§ 1101(a)(42), 1158(b)(2)(A)(i) and 1231(b)(3)(B)(i). The IJ also rejected Kennedy's claims on the merits. The BIA summarily affirmed on J u ly 9, 2004. Kennedy did not petition for review, timely or otherwise, so we lack ju ris d ic tio n to review these underlying rulings. See Vakker v. Att'y Gen., 519 F.3d 143, 1 4 6 (3d Cir. 2008) (citing Stone v. INS, 514 U.S. 386, 405 (1995)). T h e Supreme Court later decided Negusie v. Holder, 129 S. Ct. 1159 (2 0 0 9 ), in which it remanded for the BIA to reconsider its long-standing position that the p e rs e c u to r bar applies even if an alien's participation in persecution was involuntary.1 T h e IJ found that Kennedy's participation in persecution was voluntary. Although K e n n e d y did not seek review of that finding, she filed a motion to reopen on the basis of N e g u sie . She acknowledged that her motion was untimely because she did not file it

The Supreme Court held that the BIA's reasoning was invalid because the BIA b eliev ed itself bound on the issue by Fedorenko v. United States, 449 U.S. 490 (1981), w h ic h addressed a different statutory scheme. See Negusie, 129 S. Ct. at 1165-66. The C o u rt remanded for the BIA to reevaluate the issue without treating Fedorenko as c o n tro llin g , though it acknowledged that the BIA might nevertheless reach the same c o n c lu s io n . See id. at 1166-67. 2

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Case: 09-3377

Document: 003110317013

Page: 3

Date Filed: 10/18/2010

w ith in ninety days of the BIA's previous decision. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C .F .R . § 1003.2. She requested, however, that the BIA exercise its authority to reopen s u a sponte, see 8 C.F.R. § 1003.2(a), on the grounds that Negusie represents a f u n d a m e n ta l change in the law. The BIA denied the motion on July 16, 2009, and K e n n e d y petitions for review. II. W e generally lack jurisdiction to review the BIA's decisions regarding re o p e n in g sua sponte because the regulation providing for that discretionary authority " o f f e rs no standard governing the agency's exercise of discretion." Calle-Vujiles v. A s h c ro f t, 320 F.3d 472, 475 (3d Cir. 2003). We have recognized an exception permitting re v ie w "if an agency `announces and follows--by rule or by settled course of a d ju d ic a tio n -- a general policy by which its exercise of discretion will be governed[.]'" Id. (citation omitted). Kennedy argues that we have jurisdiction to review the BIA's ru lin g in this case because it has announced by course of adjudication a policy of re o p e n in g sua sponte when there has been a change in the law, which she argues Negusie r e p re s e n ts . W e disagree. Kennedy relies primarily on three BIA decisions: In re X-GW -, 22 I. & N. Dec. 71 (BIA 1998), abrogated on other grounds by In re G-C-L-, 23 I. & N . Dec. 359 (BIA 2002); In re G-D-, 22 I. & N. Dec. 1132 (BIA 1999); and In re B e c k fo rd , 22 I. & N. Dec. 1216 (BIA 2000). These decisions do not establish a general

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Case: 09-3377

Document: 003110317013

Page: 4

Date Filed: 10/18/2010

p o lic y of reopening on the basis of a change in the law. I n In re X-G-W-, the BIA announced a policy of reopening Chinese c o e rc iv e family planning cases on the basis of legislation making eligible for asylum c e rta in aliens who had not been eligible before. 22 I. & N. Dec. at 72-72. This ruling e x p re ss ly applied only to a limited category of cases (and the BIA has since discontinued th e policy, see In re G-C-L-, 23 I. & N. Dec. at 361-62). In In re G-D-, the BIA declined to reopen on the basis of an asserted change in law that represented only an "incremental" d ev elop m en t rather than the kind of "fundamental change" at issue in In re X-G-W-. 22 I. & N. Dec. at 1135. The BIA explained that its decisions in these two cases were merely " e x a m p les of the circumstances in which we deem it appropriate or inappropriate to ex erc ise our sua sponte authority to reopen[.]" Id. at 1134-35 (emphasis added). And In re Beckford did not involve a change in the law at all. The BIA in that case merely noted th a t untimely motions to reopen must, "at a minimum, . . . demonstrate a substantial lik e lih o o d that the result . . . would be changed if reopening is granted." 22 I. & N. Dec. a t 1219 (emphasis added). It did not hold that it would reopen whenever there was a lik e lih o o d of a different result, let alone one based on a change in the law. In sum, we cannot conclude that the BIA has announced a policy governing th e exercise of its discretion under the circumstances presented here. Accordingly, we la c k jurisdiction over Kennedy's petition for review and will dismiss it on that basis. The G o v e rn m e n t's motion for summary action is denied as moot.

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