Sabhari v. Mukasey (8th Cir. 4/10/08)

PER CURIAM Murphy Melloy Smith

Notwithstanding the 8th Cir decision in Tamenut, the Court had jurisdiction to consider constitutional arguments regarding the Board's refusal to reopen sua sponte - but grant of Asylum to his (estranged) brother didn't constitute a deprivation of fundamental fairness, where he didn't know about it until proceedings were terminated.

Read decision here:

Facts: denied asylum, sought reopening for AOS (but I-130 not adjudicated, so request denied); then sought reopening again, for asylum - on the basis that he only just discovered that his brother had been granted asylum based on similar facts.  But he filed his I-589 a year after the one-year filing deadline had passed.  Board said that his brother's asylum approval didn't constitute changed country conditions or any other grounds to excuse late asylum filing.

1.  Found jurisdiction to consider the constitutional claim.

   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.

2.  Finds that his DP arguments - that the DHS should have told him of his brother's asylum approval, and that Board shouldn't have denied for failure to explain why he didn't earlier discover his brother's asylum grant - are just disguised discretionary arguments.

   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.

[Analysis: The claim that the Board is acting inconsistently on similar facts does seem like a plausible DP claim - but the problem with the analysis on these facts is the one-year deadline; unless he could get around that, he wouldn't be similarly situated to his brother, as he'd be stuck applying for withholding, not asylum.  The procedural oddities of this case, particularly the estranged family situation, cloak that argument, and lead to a decision which may turn out to be an unfortunate development.  - CR]

Atty: Herbert Igbanugo

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Copyright (C) 2007 Alain Georgette / Copyright (C) 2006 Frantisek Hliva. All rights reserved.