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    Key v. Ashcroft, 4th Cir. (2003)

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    1) Musilimot Oluwatoyin Key, a Nigerian citizen, filed a motion to reopen her deportation proceedings based on eligibility for asylum due to changed circumstances involving female genital mutilation in Nigeria, and eligibility to adjust her status due to her marriage to a U.S. citizen. 2) The Board of Immigration Appeals denied the motion, finding that the circumstances presented were not changed and could have been presented in her initial deportation hearing. 3) The Fourth Circuit Court upholds the BIA's denial, finding no abuse of discretion as the evidence and claims were previously available.

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    Key v. Ashcroft, 4th Cir. (2003)

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    1) Musilimot Oluwatoyin Key, a Nigerian citizen, filed a motion to reopen her deportation proceedings based on eligibility for asylum due to changed circumstances involving female genital mutilation in Nigeria, and eligibility to adjust her status due to her marriage to a U.S. citizen. 2) The Board of Immigration Appeals denied the motion, finding that the circumstances presented were not changed and could have been presented in her initial deportation hearing. 3) The Fourth Circuit Court upholds the BIA's denial, finding no abuse of discretion as the evidence and claims were previously available.

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    Filed: 2003-05-27 Precedential Status: Non-Precedential Docket: 02-1805

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    1) Musilimot Oluwatoyin Key, a Nigerian citizen, filed a motion to reopen her deportation proceedings based on eligibility for asylum due to changed circumstances involving female genital mutilation in Nigeria, and eligibility to adjust her status due to her marriage to a U.S. citizen. 2) The Board of Immigration Appeals denied the motion, finding that the circumstances presented were not changed and could have been presented in her initial deportation hearing. 3) The Fourth Circuit Court upholds the BIA's denial, finding no abuse of discretion as the evidence and claims were previously available.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    18 views3 pages

    Key v. Ashcroft, 4th Cir. (2003)

    Uploaded by

    Scribd Government Docs
    1) Musilimot Oluwatoyin Key, a Nigerian citizen, filed a motion to reopen her deportation proceedings based on eligibility for asylum due to changed circumstances involving female genital mutilation in Nigeria, and eligibility to adjust her status due to her marriage to a U.S. citizen. 2) The Board of Immigration Appeals denied the motion, finding that the circumstances presented were not changed and could have been presented in her initial deportation hearing. 3) The Fourth Circuit Court upholds the BIA's denial, finding no abuse of discretion as the evidence and claims were previously available.

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    of 3

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT
    MUSILIMOT OLUWATOYIN KEY,
    Petitioner,
    v.
    U.S. IMMIGRATION & NATURALIZATION
    SERVICE; JOHN ASHCROFT, Attorney
    General,
    Respondents.

    No. 02-1805

    On Petition for Review of an Order of the


    Board of Immigration Appeals.
    (A72-725-722)
    Submitted: April 15, 2003
    Decided: May 27, 2003
    Before WILKINSON, LUTTIG, and GREGORY, Circuit Judges.

    Petition denied by unpublished per curiam opinion.

    COUNSEL
    Ronald D. Richey, RONALD D. RICHEY & ASSOCIATES, Rockville, Maryland, for Petitioner. Robert D. McCallum, Jr., Assistant
    Attorney General, Linda S. Wendtland, Larry P. Cote, Office of
    Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C. for Respondent.

    KEY v. INS

    Unpublished opinions are not binding precedent in this circuit. See


    Local Rule 36(c).

    OPINION
    PER CURIAM:
    Musilimot Oluwatoyin Key petitions for review of the Board of
    Immigration Appeals ("Board") denial of her motion to reopen her
    deportation proceedings. Key is a citizen and native of Nigeria. She
    is married to an American citizen and has four children, including two
    young daughters. Keys motion to reopen is based on her eligibility
    for asylum based on alleged changed circumstances in Nigeria involving its laws, tribal customs, and country conditions. The crux of these
    allegations is Keys fear of her father in Nigeria, who demands that
    Keys five-year-old daughter be subjected to female genital mutilation
    if the daughter visits Nigeria. Key alternatively claims she is eligible
    for an adjustment in status based on her marital status. For the following reasons, we deny Keys petition for review.
    We review the Boards denial of a motion to reopen or a motion
    to reconsider for abuse of discretion. 8 C.F.R. 3.2(a) (2002); INS v.
    Doherty, 502 U.S. 314, 323-24 (1992); Stewart v. INS, 181 F.3d 587,
    595 (4th Cir. 1999). We utilize extreme deference in reviewing the
    denial of a motion to reopen because immigration statutes do not contemplate reopening and the applicable regulations disfavor motions to
    reopen. M.A. v. INS, 899 F.2d 304, 308 (4th Cir. 1990) (en banc). The
    denial of a motion to reopen is an abuse of discretion when the denial
    is "arbitrary, irrational, or contrary to law." Sevoian v. Ashcroft, 290
    F.3d 166, 174 (3d Cir. 2002) (quoting Tipu v. INS, 20 F.3d 580, 592
    (3d Cir. 1994)). See also Gottesman v. INS, 33 F.3d 383, 389 (4th Cir.
    1994) (holding the Boards decision will be upheld unless petitioners
    show it was arbitrary or capricious).
    The Board cannot grant a motion to reopen when the alleged detrimental change in circumstances was previously available but not
    presented in prior deportation proceedings. "A motion to reopen proceedings shall not be granted unless it appears to the Board that evi-

    KEY v. INS

    dence sought to be offered is material and was not available and could
    not have been discovered or presented at the former hearing. . . ." 8
    C.F.R. 3.2(c)(1)(2002).
    In reviewing Keys motion to reopen based on her petition for asylum, we find the Government has presented credible evidence that
    Key knew of the conflict with her father as early as the birth date of
    her daughter, long before the deportation hearing in which Key conceded deportability before the immigration judge. Moreover, the precedent Key claims represents a significant change in the law, see
    Matter of Kasinga, 21 I. & N. Dec. 357 (BIA 1996) (holding petitioner challenging deportation order can raise female genital mutilation as basis for asylum in motion to reopen), was published and
    available to Key prior to her initial deportation hearing in November
    1996. Thus Kasinga did not constitute a significant change in the law
    at the hearing before the immigration judge.
    We also deny Keys motion to reopen on the basis that her marital
    status warrants an adjustment of status. The Board correctly found
    that this claim was untimely filed. See 8 C.F.R. 3.2(c)(2) (2000).*
    Accordingly, we deny the petition for review. We dispense with oral
    argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid
    the decisional process.
    PETITION DENIED
    *A motion to reopen that applies for asylum based on changed circumstances that are material and previously unavailable is not subject to the
    ninety-day filing period. The Board denied the motion to reopen as
    untimely only insofar as Key attempts to claim an adjustment of status
    in her motion to reopen.

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