United States Court of Appeals
For the First Circuit
No. 23-1857
FREDLY CHARLES,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Barron, Chief Judge,
Kayatta and Gelpí, Circuit Judges.
Ira Sagiv Alkalay for petitioner.
Keith Ian McManus, Assistant Director, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, with whom
Brian M. Boynton, Principal Deputy Assistant Attorney General,
Civil Division, and Jessica E. Burns, Senior Litigation Counsel,
Office of Immigration Litigation, were on brief, for respondent.
August 15, 2024
KAYATTA, Circuit Judge. Petitioner Fredly Charles
challenges the Board of Immigration Appeals' ("BIA" or "the Board")
denial of his motion to reopen his removal proceedings sua sponte.
He alleges that the BIA legally erred by failing to consider
evidence submitted with that motion. The BIA has wide latitude in
determining whether to invoke its sua sponte authority. This
court, in turn, has jurisdiction to review refusals to reopen sua
sponte only to the extent that the Board commits legal error.
Because we find that Charles has not shown that the BIA violated
any law, we must deny his petition.
I.
Fredly Charles, a native and citizen of Haiti, was
admitted to the United States in 2007. He arrived with a parent
who was engaged to marry a United States citizen, and he became a
lawful permanent resident ("LPR") on a conditional basis in 2009.
In 2012 he lost that LPR status, and in 2019 the Department of
Homeland Security ("DHS") charged him with removability under 8
U.S.C. § 1227(a)(1)(D)(i).
Charles conceded removability, but submitted
applications for cancellation of removal, adjustment of status,
and protection under the Convention Against Torture ("CAT"). His
applications asserted that his removal to Haiti would cause his
two children -- U.S. citizens -- and his parents to suffer
"exceptional and extremely unusual hardship." An Immigration
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Judge ("IJ") disagreed, denying all three applications in 2019.
Charles challenged the denial of his application for cancellation
of removal, but the BIA dismissed his appeal the following year.
To be eligible for cancellation of removal, Charles had
to show, among other things, that (1) his removal would result in
"exceptional and extremely unusual hardship" to a qualified
relative and (2) he "merit[ed] a favorable exercise of
discretion." See 8 U.S.C. §§ 1229a(c)(4)(A)(1)-(ii),
1229b(b)(1)(D). The BIA and IJ found that he had not made either
of these required showings. In particular, both the IJ and BIA
emphasized that Charles had been arrested three times from
2015-2018 on charges including trespassing, assault and battery,
possession of a controlled substance, and carrying a loaded firearm
without a license.
While the arrests did not result in any convictions, the
IJ and BIA found that Charles' "various interactions with the
criminal justice system" weighed against "a favorable exercise of
discretion" in his case. They likewise each noted that Charles
had not at that point provided any financial support for his
children, which in their view further undermined his claim for
relief.
Charles thereafter submitted three motions to reopen his
immigration proceedings, the third of which is the subject of this
appeal. Charles submitted his first motion to reopen in March
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2020. After the BIA denied that motion in August 2020, he
submitted his second in September 2020.1 The Board denied the
second motion in March 2021. Charles' first two motions to reopen
emphasized that most of the criminal charges against him had been
dropped after the IJ's initial decision, and provided additional
evidence about the hardship his family would face if he were
deported. In his first motion to reopen, he also argued that
conditions in Haiti had deteriorated since his merits hearing.
In its denials of Charles' first two motions, the Board
found that Charles had still not shown that his removal would
result in the degree of exceptional hardship to qualifying
relatives necessary to warrant reopening. It also opined that he
had not demonstrated that country conditions in Haiti had
materially changed, nor had he articulated a persecution claim.
Charles petitioned this court for review of the agency's denial of
his second motion to reopen, but that petition has since been
dismissed on the parties' joint motion. See Charles v. Garland,
No. 21-1342 (1st Cir. Oct. 27, 2023).
Following the BIA's denial of Charles' first two motions
to reopen, his wife -- a U.S. citizen -- gave birth to the couple's
daughter, "A.C." A.C. was born in November 2021 with several
serious medical conditions including choanal atresia, a rare and
1 The motion requested only reconsideration, but the Board
treated it as a combined motion to reopen and reconsider.
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life-threatening respiratory disorder. She was unable to leave
the hospital until June 2022, and remains tube-fed and ventilator
dependent. Charles has left his job to become A.C.'s primary
caregiver while his wife works.
Citing his daughter's condition, Charles submitted his
third motion to reopen in May 2022. As a result of his "new and
profoundly challenging circumstances," he requested that the BIA
"exercise its authority, sua sponte, to reopen and remand his
proceedings." Along with the motion, he submitted evidence of
A.C.'s medical needs and the inadequacy of the medical care that
would be available to her in Haiti.
The Board denied the motion as "untimely and numerically
barred." It found that Charles "ha[d] not submitted sufficient
evidence probative of his discretionary fitness for relief to carry
the 'heavy burden' of demonstrating" that the Board should
nonetheless reopen his case. In its denial, the BIA also noted
that, "equities acquired after the entry of a final order are
entitled to less weight than those acquired before the entry of
such an order." "As this is the situation presently before us (in
respect to the most recent child)," the Board continued, "we
decline to reopen the proceedings on our own motion." Charles now
appeals the denial of his third motion to reopen.
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II.
With a few narrow exceptions, the Immigration and
Nationality Act limits petitioners to a single motion to reopen
filed within ninety days of a removal order. See 8 U.S.C.
§ 1229a(c)(7)(A), (c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). If a
motion "falls outside of the timing and number restrictions" and
"does not fit into one of the statutory exceptions, the only way
for the petitioner to reopen proceedings is to request that the
BIA reopen them sua sponte, i.e., 'on its own motion.'" Thompson
v. Barr,
959 F.3d 476, 480 (1st Cir. 2020).
The Board has discretion to decide whether to grant or
deny sua sponte reopening. 8 C.F.R. § 1003.2(a). No statute or
regulation has provided any standard for the Board to apply in
exercising its sua sponte powers. See Bonilla v. Lynch,
840 F.3d
575, 585 (9th Cir. 2016). The Board has set some parameters of
its own, making clear that it will only choose to reopen sua sponte
in "truly exceptional" situations. Thompson,
959 F.3d at 480
(quoting In re G–D–,
22 I. & N. Dec. 1132, 1134 (B.I.A. 1999)).
But even then, "the Board is not required -- by regulation or its
own decisions -- to reopen proceedings sua sponte in exceptional
situations." Bonilla,
840 F.3d at 585.
Because there is no "meaningful standard against which
to judge the agency's exercise of its discretion," this court lacks
jurisdiction to review the Board's exercise of its sua sponte
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authority. Heckler v. Chaney, 470 U.S. 821, 830 (1985); see also
Thompson,
959 F.3d at 480. The one exception is if the Board, in
exercising its discretion, somehow violates the law. Thompson,
959 F.3d at 480-81, 483.
III.
The foregoing means that whether we agree with the Board
that this case does not present an exceptional situation warranting
discretionary relief is of no moment; we have no jurisdiction to
review that judgment. Our hands are firmly tied, except to the
extent we may extend them to handle claims of legal error.
Charles tries to put forward two such claims of legal
error. We consider them in turn.
A.
Charles first argues that because the BIA in its decision
did not mention the medical challenges presented by his third
child, it must have ignored that evidence, and ignoring evidence
should be deemed legal error.
To be sure, the BIA is required in other contexts "to
consider all relevant evidence in the record." Lin v. Mukasey,
521 F.3d 22, 28 (1st Cir. 2008). We need not decide whether such
a requirement exists in this context, because the BIA's decision
does not suggest that it ignored relevant evidence. Charles argues
that, had the Board considered the evidence he submitted about his
daughter's medical condition, there would be "at least one
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sentence" in the denial "showing that [the Board] had done so."
But as we have previously explained, the BIA "is not required to
discuss every piece of evidence offered regardless of its relation
to the actual grounds of the administrative decision." Lin, 521
F.3d at 28 (citing Morales v. INS,
208 F.3d 323, 328 (1st Cir.
2000)). Rather, "[w]hen the BIA's decision is neither inconsistent
with the background evidence nor gives reason to believe the BIA
was unaware of it, we have no reason to doubt that the agency
considered the evidence."
Id.
There is no indication in the BIA's denial of Charles'
motion to reopen sua sponte that it was unaware of the evidence
that Charles submitted with his motion. Charles brandishes a
footnote in which the Board deemed whether he had two or three
children "not of particular relevance," to his motion to reopen
sua sponte. With that footnote, he argues, the "BIA . . . declared
its total indifference to the evidence." In context though, the
footnote refers to discrepancies in the record over the total
number of Charles' children.2
Elsewhere in the denial, the BIA makes clear it was aware
that A.C.'s birth was the basis for Charles' third motion. For
example, it states that "respondent's motion is based on the birth
2 These discrepancies apparently stem from the fact that
Charles' name did not appear on the birth certificate of one of
his children born before A.C.
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of his child," and implies that "the most recent child" is an
"equit[y] acquired after the entry of a final order." So even
though the BIA did not discuss A.C.'s medical condition, there is
no reason to doubt -- at least in the context of addressing a
motion to reopen sua sponte -- that it was aware of the background
evidence Charles had submitted. As a result, we cannot find that
the Board failed to consider the evidence in the record.
B.
Charles additionally contends that the BIA erred in
denying his motion by "arbitrarily depart[ing] from its prior
practices." He points to three unpublished decisions in which the
Board granted motions to reopen or remand submitted by petitioners
with medically fragile children. But Charles cites no law
establishing that by granting reopening in one case, the Board
limits its discretion to deny relief in all similar (albeit not
identical) cases. Moreover, "unpublished BIA decisions carry no
precedential value." Tulung v. Garland, 102 F.4th 551, 557 (1st
Cir. 2024). This is especially true when, as here, the unpublished
decisions do not purport to be a representative sample. Id.; see
also Djokro v. Garland,
102 F.4th 39, 46 (1st Cir. 2024) (noting
that a sample of unpublished BIA decisions was not representative
when it contained no cases in which the BIA denied the petitioner's
requested relief). We cannot conclude that the BIA committed legal
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error by coming to a different conclusion than it did in the three
unpublished decisions Charles cites.
III.
For the foregoing reasons, Charles has not shown that
the BIA committed reviewable error in denying his motion to reopen
sua sponte. We therefore dismiss his challenge to that denial.
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