United States Court of Appeals

For the Eighth Circuit

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No. 20-2316

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Deqa Mohamed Yusuf

lllllllllllllllllllllPetitioner

v.

Merrick B. Garland, Attorney General of the United States

lllllllllllllllllllllRespondent

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Petition for Review of an Order of the

 Board of Immigration Appeals

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 Submitted: April 15, 2021

Filed: August 9, 2021

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Before KELLY, GRASZ, and KOBES, Circuit Judges. 

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KELLY, Circuit Judge.

Deqa Mohamed Yusuf was lawfully admitted to the United States as a refugee

in 1998 but never naturalized. In 2012, she pleaded guilty to unintentional seconddegree felony murder and was ordered removed to Somalia as a result of the

conviction. See Minn. Stat. § 609.19, subdiv. 2(1) (1998); 8 U.S.C.

§ 1227(a)(2)(A)(iii). Yusuf later filed two successive motions to reopen her
immigration proceedings, one before the Immigration Judge (IJ) and the other before

the Board of Immigration Appeals (BIA). Both were denied. She now petitions for

review of the BIA’s denial of her second motion. 

I.

Yusuf’s removal proceedings took place in 2018, while she was still serving

her term of imprisonment in the custody of the Minnesota Department of Corrections. 

The proceedings were conducted telephonically, and Yusuf appeared pro se. On

March 21, 2018, the IJ entered a final order of removal, and Yusuf waived her right

to appeal. But ten months later, she filed a motion seeking to reopen her case in order

to apply for deferral of removal under the Convention Against Torture (CAT) and for

other related relief. The IJ denied the motion, and the BIA affirmed. 

After obtaining counsel, Yusuf filed a second motion to reopen with the BIA

on November 27, 2019. In this second motion, she sought to reopen removal

proceedings on the basis of changed country conditions in Somalia or, in the

alternative, pursuant to the BIA’s sua sponte authority. In support of her request for

sua sponte reopening, Yusuf argued that she was denied a fair removal hearing

because she was under the influence of methamphetamine at the time and thus

incompetent to proceed.

The BIA deemed the second motion to reopen time barred and, on the issue of

competency, determined that Yusuf did not “present[] evidence contemporaneous

with her hearing to establish that she was intoxicated” and accordingly “has not

established that she was denied a fundamentally fair hearing.” Yusuf argues that the

BIA abused its discretion in denying the motion to reopen. 

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II.

A motion to reopen generally must be filed within 90 days of the date of the

final order of removal. See 8 C.F.R. § 1003.2(c)(2). Yusuf’s second motion, filed

almost two years after the final order of removal, was therefore presumptively

untimely. “But the untimeliness of a motion to reopen may be excused if a petitioner

shows changed country conditions based on evidence not previously available and

if [s]he makes a prima facie showing that, if reopened, h[er] case would lead to

relief.” Sharif v. Barr, 965 F.3d 612, 618 (8th Cir. 2020) (cleaned up) (quoting

Rivera-Guerrero v. Barr, 926 F.3d 1050, 1052 (8th Cir. 2019) (per curiam)); see 8

C.F.R. §§ 1003.2(c)(3)(ii), 1003.23(b)(4)(i). 

We review the BIA’s denial of a motion to reopen for an abuse of discretion.1

Ahmed v. Barr, 973 F.3d 922, 929 (8th Cir. 2020). The BIA “abuses its discretion

only when its decision is without rational explanation, departs from established

policies, invidiously discriminates against a particular race or group, or where the

agency fails to consider all factors presented by the [noncitizen] or distorts important

aspects of the claim.” Id. at 929 (cleaned up) (quoting Lee v. Holder, 765 F.3d 851,

855 (8th Cir. 2014)). 

Yusuf argues that Somalia has become increasingly unsafe since 2018 and that

as a gay woman and a recent convert to Christianity she faces a high likelihood of

torture there. The BIA reviewed the evidence she submitted with her motion to

reopen and supplemental brief and determined that it “demonstrates a continuation

of country conditions, as opposed to materially changed circumstances within the

1The government argues that Yusuf’s felony conviction prevents us from

reviewing her factual challenges to the BIA’s decision. But under Nasrallah v. Barr,

140 S. Ct. 1683 (2020), we may review both factual and legal challenges raised in a

noncitizen’s appeal of the denial of a motion to reopen seeking to apply for relief

under the CAT. See Sharif, 965 F.3d at 619, 621–22. 

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meaning of 8 C.F.R. § 1003.2(c)(3)(ii).” Having reviewed Yusuf’s proffered

evidence, including her affidavit and several news articles, we discern no abuse of

discretion in the BIA’s assessment that the evidence unfortunately “shows that the

poor conditions facing gays and Christians in Somalia have remained substantially

similar since the time of [her] hearing” and that reopening was not warranted on the

basis of changed country conditions.

Yusuf also argues that the BIA erred when it did not sua sponte reopen her

case. See In re J-J-, 21 I. & N. Dec. 976, 984 (B.I.A. 1997) (“[T]he [BIA] retains

limited discretionary powers under the regulations to reopen or reconsider cases on

our own motion . . . in exceptional situations.”); 8 C.F.R. § 1003.2(a) (establishing

the BIA’s “discretion” to grant or deny a motion to reopen). But whether to reopen

proceedings pursuant to 8 C.F.R. § 1003.2(a) is a decision “committed to agency

discretion by law” that we lack jurisdiction to review. Tamenut v. Mukasey, 521 F.3d

1000, 1005 (8th Cir. 2008) (en banc) (per curiam). We do, however, generally “have

jurisdiction over any colorable constitutional claim.” Tamenut, 521 F.3d at 1005; see

Chong Toua Vue v. Barr, 953 F.3d 1054, 1057 (8th Cir. 2020).

In support of her petition for review, Yusuf argues she was denied a fair

hearing. See Al Khouri v. Ashcroft, 362 F.3d 461, 464 (8th Cir. 2004) (holding that

the Fifth Amendment’s Due Process Clause demands “that removal hearings be

fundamentally fair”). According to Yusuf, the underlying proceedings were

fundamentally unfair because she was “high on meth” and thus incompetent at the

time of her removal hearing. Although this claim may be sufficiently colorable to

invoke our jurisdiction, Yusuf has not shown “both a fundamental procedural error

and resulting prejudice,” as is required to establish a due process violation in this

context. Freeman v. Holder, 596 F.3d 952, 957 (8th Cir. 2010) (quoting Kipkemboi

v. Holder, 587 F.3d 885, 890 (8th Cir. 2009)); see Mutie-Timothy v. Lynch, 811 F.3d

1044, 1049 (8th Cir. 2016) (denying petition for review of noncitizen’s due process

claim where she may have raised “a colorable constitutional claim sufficient to confer

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jurisdiction” but failed to show “both a fundamental procedural error and prejudice

as a result of the error” (quoting Camishi v. Holder, 616 F.3d 883, 886 (8th Cir.

2010))). Nothing in the record suggests the IJ would have had any indication that

Yusuf, who was incarcerated at the time, was intoxicated or otherwise unable to

understand the proceedings. And “[a]bsent indicia of mental incompetency, an [IJ]

is under no obligation to analyze a[] [noncitizen’s] competency.” Matter of M-A-M-,

25 I. & N. Dec. 474, 477 (B.I.A. 2011) (“[A] [noncitizen] is presumed to be

competent to participate in removal proceedings.”); cf. Munoz-Monsalve v. Mukasey,

551 F.3d 1, 6 (1st Cir. 2008) (holding that noncitizen’s due process rights were not

violated by IJ’s decision not to order a competency evaluation where the noncitizen

did not request a competency evaluation, the noncitizen did not “bring the possibility

of incompetence to the attention of the [IJ],” and “[t]he record contain[ed] no

significantly probative evidence of any lack of competency”); Barker v. Att’y Gen.

of U.S., 613 F. App’x 197, 202 (3d Cir. 2015) (concluding that petitioner’s due

process rights were not violated where the record contained no “indicia of

incompetency that should have triggered greater scrutiny of Barker’s competency

from the IJ”). Accordingly, we deny the petition for review with respect to Yusuf’s

due process claim.

III.

For these reasons, we deny the petition for review.2

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2We deny the government’s motion to dismiss the appeal as moot on the

grounds that Yusuf, who has already been removed to Somalia, has since left Somalia

for a third country. As an initial matter, the record on this issue is entirely

undeveloped. Moreover, the government concedes that Yusuf’s removal to Somalia

does not by itself moot her claim for CAT relief, and it has not cited to any authority

that suggests her temporary flight to a third country moots her claim for protection

under the CAT. 

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