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Sabhari v. Mukasey: IMMIGRATION - denying untimely second motion to reopen asylum proceedings not abuse

1Michael B. Mukasey has been appointed Attorney General, and is substituted
as respondent pursuant to Federal Rule of Appellate Procedure 43(c).
United States Court of Appeals
No. 06-3483
Ali Abdulla Sabhari, *
Petitioner, *
* Petition for Review of an Order
v. * of the Board of Immigration
* Appeals.
Michael B. Mukasey, Attorney *
General of the United States * [PUBLISHED]
of America,1 *
Respondent. *
Submitted: September 27, 2007
Filed: April 10, 2008
Before MURPHY, MELLOY, and SMITH, Circuit Judges.
Ali Sabhari seeks review of a denial by the Board of Immigration Appeals
(BIA) of his motion to reopen sua sponte proceedings relating to his removal from the
United States. Sabhari also argues that the BIA's refusal to reopen proceedings
violated the Due Process Clause. We dismiss the petition for review.
I. Background
Sabhari lawfully entered the United States in November 1993 as a visitor from
Kuwait. He remained in the United States beyond the expiration of his visitor visa,
which expired in May 1994. In July 1997, the former Immigration and Naturalization
Service ("INS") initiated removal proceedings by filing a Notice to Appear charging
Sabhari with remaining in the United States longer than permitted and for procuring
admission to the United States by fraud or by willfully misrepresenting a material fact.
Five years after coming to the United States, and subsequent to the initiation of
removal proceedings, Sabhari applied for asylum and withholding of removal.
Sabhari's December 7, 1998 application stated that he sought asylum based upon
discrimination and persecution that he faced in Kuwait. Sabhari also claimed that he
was mistreated because of his third class or Bedouin status, his allegedly Jewish
appearance, and his status as a Shiite Muslim.
The Immigration Judge (IJ) issued an oral decision on July 19, 1999, denying
Sabhari's application for asylum, application for withholding of removal, application
for relief under the Convention Against Torture, and application for voluntary
departure. The IJ found that Sabhari failed to introduce sufficient, concrete or direct
evidence to show that he had a well-founded fear of persecution. Sabhari's testimony
was not sufficiently detailed, consistent or believable to provide a plausible and
coherent account of the basis for his fears, according to the IJ. On June 28, 2002, the
BIA summarily affirmed the IJ's decision without opinion.
Sabhari filed his first motion to reopen proceedings with the BIA on September
25, 2002. Sabhari applied for adjustment of status based on an unadjudicated
immediate-relative visa petition filed on Sabhari's behalf by his United States citizen
spouse. On February 10, 2003, the BIA denied Sabhari's first motion to reopen
proceedings based on a finding that Sabhari had not shown prima facie eligibility for
adjustment of status. Sabhari failed to produce clear and convincing evidence
indicating a strong likelihood that the marriage was bona fide as required by the
relevant regulations.
On May 15, 2006, Sabhari filed a second motion to reopen, requesting asylum
and related relief. He asserted that numerical and time bars should not apply to his
motion because he had discovered that his estranged brother's 1997 asylum
application had been granted based upon the "same" facts as his own application. On
August 31, 2006, the BIA denied this second motion to reopen concluding that the
motion was untimely and numerically-barred. The BIA further determined that
Sabhari's arguments for getting around those bars failed as Sabhari had not shown
changed country conditions in Kuwait.
The BIA declined to reopen the case sua sponte because the circumstances of
Sabhari's untimely second motion to reopen were not exceptional. In his first motion
to reopen, Sabhari elected to pursue adjustment of status instead of asylum. The denial
of Sabhari's adjustment of status application was not an extraordinary circumstance
justifying his untimeliness in seeking asylum. The BIA, exercising its discretion,
concluded that Sabhari's delay justified denial of his motion to reopen and his
underlying asylum claim. Sabhari then filed his petition for review.
II. Discussion
In his petition for review, Sabhari argues that the BIA abused its discretion by
denying his motion to reopen proceedings sua sponte based on exceptional
In a removal proceeding, an alien may file one motion to reopen proceedings.
8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(2) (emphasis added). This motion
must be filed within 90 days of the final administrative order of removal. 8 U.S.C. §
1229a(c)(7)(C)(I); 8 C.F.R. § 1003.2(c)(2). Here, Sabhari's motion to reopen fails
because it is his second motion to reopen, and it was filed well beyond 90 days. In
fact, it came years after the final administrative order of removal.
The governing regulations also provide that the BIA may reopen proceedings
on its own motion. 8 C.F.R. § 1003.2(a). However, we recently held, en banc, that the
decision whether to reopen removal proceedings sua sponte is committed to the BIA's
discretion by law and that we lack jurisdiction to review the agency's discretionary
decision. Tamenut v. Mukasey, No. 05-4418, 2008 WL 637617 (8th Cir. Mar. 11,
2008) (en banc) (published per curiam). We therefore lack jurisdiction to review the
BIA's decision not to reopen Sabhari's proceedings sua sponte.
Sabhari also argues that the BIA violated the Due Process Clause by denying
his motion to reopen. Although we lack jurisdiction over Sabhari's challenge to the
decision not to reopen sua sponte, we generally do have jurisdiction over any
colorable constitutional claims. See Mouawad v. Gonzales, 485 F.3d 405, 411 (8th
Cir. 2007); Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001). To be
colorable, a constitutional claim must have "some possible validity." Torres-Aguilar,
246 F.3d at 1271.
Sabhari argues that the BIA violated the Due Process Clause by finding that he
did not clearly state when he learned of his brother's asylum grant nor did he explain
why his non-estranged family members could not have helped him discover the grant
sooner. Sabhari also argues that the Department of Homeland Security (DHS) should
have disclosed to Sabhari that his brother was granted asylum. We think these
contentions are simply "cloaking an abuse of discretion argument in constitutional
garb," Onyinkwa v. Ashcroft, 376 F.3d 797, 799 n.1 (8th Cir. 2004) (quoting Torres-
Aguilar, 246 F.3d at 1271), and are thus insufficient to justify judicial review. The
Due Process Clause guarantees that removal proceedings will be fundamentally fair
and Sabhari points to nothing that suggests that the proceedings below were not
fundamentally fair. Al Khouri v. Ashcroft, 362 F.3d 461, 464 (8th Cir. 2004).
Therefore, we conclude that Sabhari has not advanced a colorable claim that the BIA
violated his constitutional rights.
III. Conclusion
Accordingly, we dismiss the petition for review.


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