Boniface Makundi v. Eric H. Holder, Jr.

Filing

OPINION FILED - THE COURT: William Jay Riley, Kermit E. Bye and Raymond W. Gruender AUTHORING JUDGE:Kermit E. Bye (PUBLISHED) [4353990] [14-3684]

United States Court of Appeals
For the Eighth Circuit
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No. 14-3684
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Boniface William Makundi
lllllllllllllllllllllPetitioner
v.
Loretta E. Lynch, 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: September 21, 2015
Filed: January 8, 2016
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Before RILEY, Chief Judge, BYE and GRUENDER, Circuit Judges.
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BYE, Circuit Judge.
Boniface William Makundi petitions for review of an order of the Board of
Immigration Appeals (BIA), which affirmed the denial of Makundi’s motion to
reopen. Makundi argues the BIA abused its discretion by finding the evidence
Makundi submitted was previously discoverable and holding his prior counsel had
effectively withdrawn in 2011. We deny Makundi’s petition.

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I
Makundi, a native and citizen of Tanzania, entered the United States on May
21, 2003, with a non-immigrant visitor visa. Makundi had authorization to remain
in the United States for only one month for the purpose of attending his sister's
graduation but has remained in the United States since that date. On September 29,
2003, Makundi married Carol Louis Bryant, a United States citizen. Following his
marriage, Makundi adjusted his status to conditional permanent resident.
In 2006, Makundi petitioned the Department of Homeland Security (DHS) to
remove the condition on his residency. In 2009, the DHS denied Makundi's petition
and terminated his conditional permanent resident status. On January 25, 2010, the
DHS commenced removal proceedings against Makundi pursuant to 8 U.S.C.
§ 1227(a)(1)(D)(i), as an alien who, after admission or adjustment on a conditional
basis, had his status terminated, and under 8 U.S.C. § 1227(a)(1)(A), as an alien who
at the time of admission or adjustment was inadmissible under 8 U.S.C.
§ 1182(a)(6)(C)(i) for seeking to procure a benefit by fraud or willfully
misrepresenting a material fact. The DHS asserted Makundi procured admission to
the United States by willfully misrepresenting a material fact which was that he was
not married at the time he married a United States citizen.
During his immigration proceedings Makundi was represented by an attorney.
At the removal hearing on July 29, 2010, Makundi conceded he was removable
because his conditional resident status had been terminated, but disputed that he had
procured his admission or adjustment by fraud or willful, material misrepresentation.
Makundi argued his marriage to a Tanzanian citizen had been annulled and was
therefore not legal at the time he married Carol Bryant. To avoid removal, Makundi
requested a waiver reinstating his residency and removing its conditional basis. The
Immigration Judge (IJ) set the hearing regarding Makundi's request for April 8, 2011.

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On March 28, 2011, Makundi's attorney filed a motion to continue because he
had been suspended from practice before the immigration court. The IJ granted the
attorney's motion and rescheduled the April 2011 hearing to February 27, 2012. The
court mailed a copy of the notice to the attorney. Makundi submits his attorney never
formally withdrew his representation and the court never ordered the attorney to no
longer represent him. Makundi further contends the immigration court continued
sending updated notices to his attorney until February 2012.
At his hearing on February 27, 2012, Makundi appeared without counsel and
requested more time to obtain new counsel. The IJ continued the hearing to March
26, 2012, so Makundi could obtain an attorney.
On March 26, 2012, Makundi appeared again without counsel and testified in
support of his request for relief. When asked by the IJ if he had any of the documents
related to his case, Makundi testified "my lawyer ha[s] them so, and I haven't g[otten]
them from him as he just disappeared." Makundi did not seek an additional
continuance.
The IJ issued an oral opinion at the conclusion of the hearing finding Makundi
removable under 8 U.S.C. § 1227(a)(1)(A) and denying his request for a waiver under
section 216(c)(4) of the Immigration and Nationality Act (INA). The IJ determined
Makundi had not submitted enough evidence to prove his marriage to Carol Bryant
was bona fide. The IJ explained to Makundi what evidence he would need to submit
in order to demonstrate he had a bona fide marriage and stated that if he was able to
provide such documentation within thirty days then he may file a motion to
reconsider and attach the documentation to the motion. Alternatively, the IJ informed
Makundi he could appeal his decision to the BIA.
With new counsel, Makundi filed a timely appeal to the BIA arguing his
marriage was bona fide and thus his petition should have been approved. On April
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30, 2014, the BIA denied Makundi's appeal finding he failed to present sufficient
evidence establishing he had a bona fide marriage.
On June 16, 2014, Makundi filed a motion to reopen with the BIA, submitting
he had been able to gather new evidence since his March 2012 hearing. Makundi
argued this evidence was not previously discoverable because his prior attorney had
been disbarred shortly before his hearing and the prior attorney had possessed much
of the evidence supporting his application. Makundi further submitted the twentyseven day extension granted by the IJ was not enough time to recover the necessary
documentation before the March 2012 hearing.
The BIA issued a summary decision on October 30, 2014, denying Makundi's
motion to reopen. The BIA found his original attorney had effectively withdrawn
approximately one year prior to the March 2012 hearing and therefore Makundi had
more than enough time to acquire new counsel. Additionally, the BIA determined the
"new" documents submitted by Makundi to establish he had a bona fide marriage
were previously discoverable as they originated from Makundi himself, as opposed
to his original attorney, and predated the March 2012 hearing. On December 1, 2014,
Makundi timely petitioned for review.
II
Makundi argues the BIA erred when it denied his motion to reopen because his
materials were undiscoverable prior to the March 26, 2012, hearing and therefore his
case merits reopening.
"We review the BIA's denial of a motion to reopen for abuse of discretion . . ."
Valencia v. Holder, 657 F.3d 745, 748 (8th Cir. 2011). The BIA abuses its discretion
when it "gives no rational explanation for its decision, departs from its established
policies without explanation, relies on impermissible factors or legal error, or ignores
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or distorts the record evidence." Guled v. Mukasey, 515 F.3d 872, 882 (8th Cir.
2008). "For the BIA to grant a motion to reopen, the new evidence must have been
'neither available nor discoverable at the prior hearing' and must be 'material to the
outcome of the proceeding.'" Xiu Ling Chen v. Holder, 751 F.3d 876, 878 (8th Cir.
2014) (quoting Quinteros v. Holder, 707 F.3d 1006, 1009 (8th Cir. 2013)).
The BIA did not abuse its discretion in denying Makundi's motion to reopen
because his newly submitted evidence was previously discoverable. In the BIA's
October 30, 2014, summary decision it noted the "new" documents Makundi
submitted – which included inter alia his marriage license from 2003, rental
agreement from 2006, anniversary cards, sales receipts naming both spouses, tax
returns from 2004 to 2011, and photos of their wedding – predated the March 2012
hearing. Additionally, Makundi conceded he was never able to retrieve any
documents from his attorney but was able to submit different supporting documents
to the BIA. Makundi's ability to submit different supporting evidence to the BIA that
predated the March 2012 hearing compels the conclusion that these documents were
in his possession all along and therefore previously discoverable. Accordingly, the
BIA did not abuse its discretion in ruling Makundi's documents were previously
discoverable.
Makundi further argues his newly submitted evidence was undiscoverable
because twenty-seven days is insufficient time to gather and prepare the documents
in light of his attorney's abandonment. As a threshold matter we note that Makundi
did not request additional time to procure and prepare documents at the March 2012
hearing. Secondly, we are not persuaded that Makundi had only twenty-seven days
to prepare the documents. On March 28, 2011, Makundi's attorney submitted a
motion to continue because he became ineligible to practice law, at which point he
had notice that his attorney had effectively withdrawn. We therefore find Makundi
had approximately one year to locate a new attorney and gather his documentation but

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failed to do so. We believe the BIA's explanation of its decision to deny Makundi's
motion to reopen is rational and in accordance with the record.
For those reasons, the BIA did not abuse its discretion in denying Makundi's
motion to reopen.
III
Accordingly, we deny Makundi's petition for review.
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