2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-29-2002

Soumounou v. INS

Precedential or Non-Precedential:

Docket 01-2192

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Recommended Citation

"Soumounou v. INS" (2002). 2002 Decisions. Paper 227.

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 NOT PRECEDENTIAL 

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 

 No. 01-2192 

 

 

 ASTAN SOUMOUNOU, 

 Petitioner 

 

 v. 

 

 *IMMIGRATION AND NATURALIZATION SERVICE, 

 Respondent 

 * (Amended - See Clerk’s Order dated 11/6/01) 

 

 

 On Petition for Review of an Order of 

 The Board of Immigration Appeals 

 

 

 Submitted Under Third Circuit LAR 34.1(a) 

 January 15, 2002 

 

 Before: ALITO and ROTH, Circuit Judges 

 SCHWARZER*, District Judge 

 

 (Opinion filed March 29, 2002) 

 

 * Honorable William W Schwarzer, Senior District Judge for the Northern District 

of California, sitting by designation. 

 

 

 OPINION 

 

ROTH, Circuit Judge: 

 Appellant Astan Soumounou filed a petition to review the Board of Immigration 

Appeals’ (BIA) April 30, 2001, decision that summarily affirmed an Immigration Judge’s 

denial of her motion to reopen deportation proceedings. The motion was denied because it 

was not timely and did not fall under any of the exceptions to the timely filing requirement. 

The BIA decision caused the Immigration Judge’s Order to be a final agency determination 

for purposes of 8 C.F.R. 3.1(a)(7). We have jurisdiction to review a final deportation order 

by the BIA pursuant to 8 U.S.C. 1105a(a)(1). See Tipu v. I.N.S., 20 F.3d 580, 582 (3rd 

Cir. 1994). 

 We will review the Decision of the Immigration Judge rather than the BIA Decision 

since the BIA summarily affirmed the Immigration Judge without a separate opinion. See 

Abdulai v. Ashcroft, 239 F.3d 542, 549 (3rd Cir. 2001). We review the Immigration Judge’s 

decision for an abuse of discretion. See INS v. Doherty, 502 U.S. 314, 323 (1992) (holding 
that "the abuse-of-discretion standard applies to motions to reopen ’regardless of the 

underlying basis of the alien’s request [for relief].’"). 

 In her petition for review, Soumounou contends that she falls within a good faith 

exception to the timely filing requirement and that she has a well founded fear of persecution 

in Mali, where she will be deported. In response, the INS rests on the Immigration Judge 

decision that Soumounou’s motion to reopen was not timely and that the exceptions are 

inapplicable. 

 The Immigration Judge did not abuse his discretion when he denied the motion as 

untimely. Motions to reopen must be filed within 90 days of the date of entry of a final 

administrative order of removal, deportation or exclusion. See 8 C.F.R. 3.23(b)(1). The 

Immigration Judge granted Soumounou’s voluntary departure and ordered, in the alternative, 

that she be deported to Mali on June 9, 1998. Both parties agree that this was a final order. 

Soumounou does not question the finality of the June 9 order. Her motion was filed on 

January 25, 1999, more than 90 days after the order. The Immigration Judge did not abuse 

his discretion when he found that none of the exceptions to the 90 day requirement applied 

in this case. Exceptions to the 90 day filing requirement are set out in 8 C.F.R. 

 3.23(b)(4)(i)-(iv). These exceptions include motions to reopen applications for asylum or 

withholding of removal, reopening orders of deportation issued in abstentia, and motions 

to reopen filed jointly with the INS. See 8 C.F.R. 3.23(b)(4) (1999). 

 Of the exceptions set out in 3.23(b)(4), the only exception of arguable relevance is 

 3.23(b)(4)(i), regarding asylum and withholding of removal. Granting an exception based 

on this section of the statute is predicated on a change in the conditions of the country to 

which the alien will be deported. The section also requires that material evidence of the 

change in condition be unavailable or unable to be discovered in prior proceedings. In an 

effort to qualify under this section, Soumounou contends that she has a well founded fear 

of persecution in her country of origin. Nowhere, though, does she allege a change in the 

conditions of her country of origin or offer any evidence which was material and unavailable 

in the previous proceedings. As such, she does not qualify for any of the exceptions to the 

filing deadlines, and the Immigration Judge did not abuse his discretion in so finding. 

Similarly, any evidence that would show the prior availability of a visa should have been 

offered in previous hearings on this matter. 

 For the foregoing reasons, we will deny the petition for review of the decision of the 

Board of Immigration Appeals. 

 

TO THE CLERK: 

 Please file the foregoing Opinion. 

 By the Court, 

 /s/Jane R. Roth 

 Circuit Judge