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Thani v. Garland

United States Court of Appeals, Ninth Circuit
Oct 19, 2022
No. 18-70000 (9th Cir. Oct. 19, 2022)

Opinion

18-70000

10-19-2022

FILFIL FILFIL THANI, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.


NOT FOR PUBLICATION

Submitted October 17, 2022 [**] Seattle, Washington

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A079-810-813

Before: TALLMAN, R. NELSON, and FORREST, Circuit Judges.

MEMORANDUM [*]

Petitioner Filfil Filfil Thani challenges the Board of Immigration Appeals' (BIA) denial of his motion to reopen his removal proceedings. To the extent Thani asks us to review the BIA's refusal to reopen proceedings sua sponte, his petition is dismissed for lack of jurisdiction. We deny Thani's petition for review of the 1 BIA's decision to deny his motion to reopen removal proceedings because the BIA properly exercised its discretion.

1. Thani's motion to reopen was filed over ten years after the 90-day deadline for motions to reopen had passed under 8 U.S.C. § 1229a(c)(7)(C)(i). The BIA has discretion to reopen removal proceedings sua sponte in exceptional circumstances, see Bonilla v. Lynch, 840 F.3d 575, 584-85 (9th Cir. 2016), but it found petitioner's case was "common" not "exceptional." We do not have jurisdiction to review that decision. See Greenwood v. Garland, 36 F.4th 1232, 1237 (9th Cir. 2022) (citing Ekimian v. INS, 303 F.3d 1153, 1158-60 (9th Cir. 2002)).

2. Thani also argues the BIA abused its discretion in declining to reopen proceedings based on his new claim for asylum or withholding of removal under § 1229a(c)(7)(C)(ii). To qualify for an exception to the 90-day deadline for motions to reopen, the motion must show evidence of "changed country conditions arising in the country of nationality or the country to which removal has been ordered" and that this evidence "was not available and would not have been discovered or presented at the previous proceeding." § 1229a(c)(7)(C)(ii). The BIA held Thani did not qualify for this exception. We review that finding only for abuse of discretion. Greenwood, 36 F.4th at 1235 (citing Nababan v. Garland, 18 F.4th 1090, 1094 (9th Cir. 2021)). 2

The BIA did not abuse its discretion in finding Thani's motion to reopen did not qualify for this statutory exception. Thani argued that proceedings should be reopened because his wife and daughter might be subject to female genital mutilation (FGM) in Tanzania. Thani claims this evidence could not have been presented at his prior hearing because in 2005 he was not married to his current wife and his name did not appear on his children's birth certificates. Yet in an affidavit attached to his motion for reopening, Thani admitted that he knew he had children when he first applied for asylum but "lied to the U.S. government" and said he had none. It is also undisputed that Thani was legally married to his first wife at the time of his initial asylum application. On this record, the BIA's finding that Thani could have presented evidence about FGM in his initial proceedings was not "arbitrary, irrational, or contrary to law." Id.

Further, the BIA also found Thani had not shown a material change in conditions in Tanzania with respect to FGM since 2005. Thani's opening brief does not challenge this finding. Accordingly, this argument is waived. Martinz-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996). Thus, the Board properly determined that Thani's motion to reopen cannot qualify for the statutory exception to the 90-day time limit. See Agonafer v. Sessions, 859 F.3d 1198, 1204 (9th Cir. 2017). 3

We DENY in part Thani's petition as to his motion to reopen based on changed country conditions and DISMISS in part his petition seeking review of the BIA's exercise of its sua sponte discretion. 4

[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

[**] The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).


Summaries of

Thani v. Garland

United States Court of Appeals, Ninth Circuit
Oct 19, 2022
No. 18-70000 (9th Cir. Oct. 19, 2022)
Case details for

Thani v. Garland

Case Details

Full title:FILFIL FILFIL THANI, Petitioner, v. MERRICK B. GARLAND, Attorney General…

Court:United States Court of Appeals, Ninth Circuit

Date published: Oct 19, 2022

Citations

No. 18-70000 (9th Cir. Oct. 19, 2022)