UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ ALY ISSAC FOFANA, Petitioner,

v. MERRICK B. GARLAND, United States Attorney General, Respondent. No. 22-9509 (Petition for Review)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BACHARACH , BALDOCK , and CARSON , Circuit Judges.

________________ _________________ Aly Issac Fofana, a native and citizen of Cote d’Ivoire (Ivor y Coast), petitions for review of a decision of the Board of Immigration Appeals (BIA) denying his motion to reconsider and his request to hold the motion in abeyance. Exercising jurisdiction under 8 U.S.C. § 1252(a) , we deny the petition for review.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 6, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 22-9509 Document: 010110793946 Date Filed: 01/06/2023 Page: 12 BACKGROUND After filing an asylum application, Mr. Fofana was able to pursue adjustment of status through his United States-citizen spouse. When he arrived for his hearing before an immigration judge (IJ), he withdr ew his asylum application. However, the IJ determined that the asylum applica tion was frivolous and thus barred him from receiving any benefits under the I mmigration and Nationality Act. See 8 U.S.C. § 1158(d)(6). The IJ therefore denied Mr . Fofana’s applicati on for adjustment of status and ordered him removed. The BIA affirmed the IJ’s decision. Mr. Fofana filed a motion to reconsider. He argued that because he withdrew the asylum application, he was entitled to the benefit of 8 C. F.R. § 1208.20(f). Section 1208.20(f) sets forth four conditions that, if met, precl ude the agency from finding a withdrawn asylum application frivolous: (1) The alien wholly disc laims the application a nd withdraws it with prejudice; (2) The alien is eligible for and agr ees to accept voluntary departure for a period of no more than 30 days pur suant to section 240B(a) of the [Immigration and Nationality] Act; (3) The alien withdraws any and all ot her applications for relief or protection with prejudice; and (4) The alien waives his right to app eal and any rights to file, for any reason, a motion to reopen or reconsider. The government opposed the motion, sta ting that a federal district court had preliminarily enjoined § 1208. 20 from going into effect. See Pangea Legal Servs. v. U.S. Dep’t of Homeland Sec. , 512 F. Supp. 3d 966, 977 (N.D. Cal. 2021). Appellate Case: 22-9509 Document: 010110793946 Date Filed: 01/06/2023 Page: 23 Mr. Fofana then requested that the BIA hold the proceeding in abeyance pending the resolution of Pangea Legal Services

. The BIA denied both the motion to rec onsider and the request to hold the matter in abeyance, stating, “the regulati on cited by the respondent was subject to a preliminary injunction as of January 8, 2021 (prior to th e date it would have taken effect), is still enjoined, wa s never applicable to the re spondent’s case, and is not now applicable to his case.” Admin. R. at 3. The BIA fu rther stated that Mr. Fofana “does not explain how his pa rticular situation would m eet the requirements of the regulation at issue since his Immigrati on Court hearing was 2 years before the regulation was to take effect and in li ght of the regulation’s requirements.” Id. at 3-4. After quoting the four conditions of § 1208.20(f), it found that Mr. Fofana had “not established that he agreed at his hearing to withdraw his application for adjustment of status and seek voluntary de parture for a period of 30 da ys or less and also waived his right to appeal and his right to file a motion.” Id. at 4. Mr. Fofana now petitions for review.
DISCUSSION We review for abuse of di scretion the BIA’s denial of a motion to reconsider. See Berdiev v. Garland , 13 F.4th 1125, 1130 (10th Cir. 2021). We also review for abuse of discretion the BIA’s deni al of a request for abeyance. See Cabral v. Holder , 632 F.3d 886, 889 (5th Cir. 2011). “The BIA abuses its discretion when its decision provides no rational explanation, inexplicab ly departs from estab lished policies, is Appellate Case: 22-9509 Document: 010110793946 Date Filed: 01/06/2023 Page: 34 devoid of any reasoning, or contains only summary or conclusory statements.” Berdiev , 13 F.4th at 1130-31 (inter nal quotation marks omitted). Mr. Fofana argues that the BIA abused its discretion because it “failed to provide a reasoned explanation of its decision. One is unable to determine from the BIA’s language and mere citation to 8 C.F. R. § 1208.20(f) on which . . . grounds the BIA relied to deny Petitioner’s motion to rec onsider for abeyance.” Pet’r’s Opening Br. at 23. “This Court cannot perform a me aningful review where the [BIA] does not sufficiently articula te its reasoning.” Id. at 25. This contention is meritles s. Although its decision is concise, the BIA gave several reasons for concluding that Mr. Fofana was not entitled to relief under § 1208.20(f): (1) the regula tion was preliminarily enjoined and had never gone into effect; (2) Mr. Fofana’s case was before the IJ two y ears before the regulation’s proposed effective date; and (3) Mr. Fofana had failed to demons trate that he could satisfy all of the regulation’ s requirements. This discu ssion more than satisfied the BIA’s obligation to provide a “rational explan ation” to support its decision. “There is no abuse of discretion when the BIA’s rationale is clear , there is no departure from established policies, and its statements are a co rrect interpretation of the law, even when the BIA’s decision is succinct.” Rodas-Orellana v. Holder , 780 F.3d 982, 990 (10th Cir. 2015) (interna l quotation marks omitted). Mr. Fofana accuses the BIA of “disi ngenuously maintain[ing] that the Petitioner did not address how the outcome of the Pangea matter would apply to his case.” Pet’r’s Opening Br. at 24. But the BIA did not err in determining that Appellate Case: 22-9509 Document: 010110793946 Date Filed: 01/06/2023 Page: 45 Mr. Fofana’s appeal brief failed to establis h that he meets all four requirements of § 1208.20(f). And in any event, he ignores the BIA’s point that the IJ heard his case before § 1208.20’s effective date. Under § 1208.20(a)(2), “[p]aragraphs (b) through (f) shall only apply to appli cations filed on or after Ja nuary 11, 2021,” and it is undisputed that Mr. Fofana filed his as ylum application in 2011. Given that Mr. Fofana could never receive re lief under § 1208.20(f) even if the Pangea Legal
Services injunction were to be dissolved, th e BIA did not abuse its discretion in declining to hold the motion in abeyance pending the reso lution of that case.
CONCLUSION The petition for review is denied.

Entered for the Court

Joel M. Carson III Circuit Judge Appellate Case: 22-9509 Document: 010110793946 Date Filed: 01/06/2023 Page: 5