United States Court of Appeals For the First Circuit

No. 23-1857

FREDLY CHARLES,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Barron, Chief Judge, Kayatta and Gelpí, Circuit Judges.

Ira Sagiv Alkalay for petitioner. Keith Ian McManus, Assistant Director, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, and Jessica E. Burns, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.

August 15, 2024 KAYATTA, Circuit Judge. Petitioner Fredly Charles

challenges the Board of Immigration Appeals' ("BIA" or "the Board")

denial of his motion to reopen his removal proceedings sua sponte.

He alleges that the BIA legally erred by failing to consider

evidence submitted with that motion. The BIA has wide latitude in

determining whether to invoke its sua sponte authority. This

court, in turn, has jurisdiction to review refusals to reopen sua

sponte only to the extent that the Board commits legal error.

Because we find that Charles has not shown that the BIA violated

any law, we must deny his petition.

I.

Fredly Charles, a native and citizen of Haiti, was

admitted to the United States in 2007. He arrived with a parent

who was engaged to marry a United States citizen, and he became a

lawful permanent resident ("LPR") on a conditional basis in 2009.

In 2012 he lost that LPR status, and in 2019 the Department of

Homeland Security ("DHS") charged him with removability under

(a)(1)(D)(i).

Charles conceded removability, but submitted

applications for cancellation of removal, adjustment of status,

and protection under the Convention Against Torture ("CAT"). His

applications asserted that his removal to Haiti would cause his

two children -- U.S. citizens -- and his parents to suffer

"exceptional and extremely unusual hardship." An Immigration

- 2 - Judge ("IJ") disagreed, denying all three applications in 2019.

Charles challenged the denial of his application for cancellation

of removal, but the BIA dismissed his appeal the following year.

To be eligible for cancellation of removal, Charles had

to show, among other things, that (1) his removal would result in

"exceptional and extremely unusual hardship" to a qualified

relative and (2) he "merit[ed] a favorable exercise of

discretion." See 8 U.S.C. §§ 1229a(c)(4)(A)(1)-(ii),

1229b(b)(1)(D). The BIA and IJ found that he had not made either

of these required showings. In particular, both the IJ and BIA

emphasized that Charles had been arrested three times from

2015-2018 on charges including trespassing, assault and battery,

possession of a controlled substance, and carrying a loaded firearm

without a license.

While the arrests did not result in any convictions, the

IJ and BIA found that Charles' "various interactions with the

criminal justice system" weighed against "a favorable exercise of

discretion" in his case. They likewise each noted that Charles

had not at that point provided any financial support for his

children, which in their view further undermined his claim for

relief.

Charles thereafter submitted three motions to reopen his

immigration proceedings, the third of which is the subject of this

appeal. Charles submitted his first motion to reopen in March

- 3 - 2020. After the BIA denied that motion in August 2020, he

submitted his second in September 2020.1 The Board denied the

second motion in March 2021. Charles' first two motions to reopen

emphasized that most of the criminal charges against him had been

dropped after the IJ's initial decision, and provided additional

evidence about the hardship his family would face if he were

deported. In his first motion to reopen, he also argued that

conditions in Haiti had deteriorated since his merits hearing.

In its denials of Charles' first two motions, the Board

found that Charles had still not shown that his removal would

result in the degree of exceptional hardship to qualifying

relatives necessary to warrant reopening. It also opined that he

had not demonstrated that country conditions in Haiti had

materially changed, nor had he articulated a persecution claim.

Charles petitioned this court for review of the agency's denial of

his second motion to reopen, but that petition has since been

dismissed on the parties' joint motion. See Charles v. Garland,

No. 21-1342 (1st Cir. Oct. 27, 2023).

Following the BIA's denial of Charles' first two motions

to reopen, his wife -- a U.S. citizen -- gave birth to the couple's

daughter, "A.C." A.C. was born in November 2021 with several

serious medical conditions including choanal atresia, a rare and

1 The motion requested only reconsideration, but the Board treated it as a combined motion to reopen and reconsider.

- 4 - life-threatening respiratory disorder. She was unable to leave

the hospital until June 2022, and remains tube-fed and ventilator

dependent. Charles has left his job to become A.C.'s primary

caregiver while his wife works.

Citing his daughter's condition, Charles submitted his

third motion to reopen in May 2022. As a result of his "new and

profoundly challenging circumstances," he requested that the BIA

"exercise its authority, sua sponte, to reopen and remand his

proceedings." Along with the motion, he submitted evidence of

A.C.'s medical needs and the inadequacy of the medical care that

would be available to her in Haiti.

The Board denied the motion as "untimely and numerically

barred." It found that Charles "ha[d] not submitted sufficient

evidence probative of his discretionary fitness for relief to carry

the 'heavy burden' of demonstrating" that the Board should

nonetheless reopen his case. In its denial, the BIA also noted

that, "equities acquired after the entry of a final order are

entitled to less weight than those acquired before the entry of

such an order." "As this is the situation presently before us (in

respect to the most recent child)," the Board continued, "we

decline to reopen the proceedings on our own motion." Charles now

appeals the denial of his third motion to reopen.

- 5 - II.

With a few narrow exceptions, the Immigration and

Nationality Act limits petitioners to a single motion to reopen

filed within ninety days of a removal order. See 8 U.S.C.

§ 1229a(c)(7)(A), (c)(7)(C)(i);

(c)(2). If a

motion "falls outside of the timing and number restrictions" and

"does not fit into one of the statutory exceptions, the only way

for the petitioner to reopen proceedings is to request that the

BIA reopen them sua sponte, i.e., 'on its own motion.'" Thompson

v. Barr,

(1st Cir. 2020).

The Board has discretion to decide whether to grant or

deny sua sponte reopening.

(a). No statute or

regulation has provided any standard for the Board to apply in

exercising its sua sponte powers. See Bonilla v. Lynch,

(9th Cir. 2016). The Board has set some parameters of

its own, making clear that it will only choose to reopen sua sponte

in "truly exceptional" situations. Thompson,

(quoting In re G–D–,

(B.I.A. 1999)).

But even then, "the Board is not required -- by regulation or its

own decisions -- to reopen proceedings sua sponte in exceptional

situations." Bonilla,

.

Because there is no "meaningful standard against which

to judge the agency's exercise of its discretion," this court lacks

jurisdiction to review the Board's exercise of its sua sponte

- 6 - authority. Heckler v. Chaney,

(1985); see also

Thompson,

. The one exception is if the Board, in

exercising its discretion, somehow violates the law. Thompson,

.

III.

The foregoing means that whether we agree with the Board

that this case does not present an exceptional situation warranting

discretionary relief is of no moment; we have no jurisdiction to

review that judgment. Our hands are firmly tied, except to the

extent we may extend them to handle claims of legal error.

Charles tries to put forward two such claims of legal

error. We consider them in turn.

A.

Charles first argues that because the BIA in its decision

did not mention the medical challenges presented by his third

child, it must have ignored that evidence, and ignoring evidence

should be deemed legal error.

To be sure, the BIA is required in other contexts "to

consider all relevant evidence in the record." Lin v. Mukasey,

(1st Cir. 2008). We need not decide whether such

a requirement exists in this context, because the BIA's decision

does not suggest that it ignored relevant evidence. Charles argues

that, had the Board considered the evidence he submitted about his

daughter's medical condition, there would be "at least one

- 7 - sentence" in the denial "showing that [the Board] had done so."

But as we have previously explained, the BIA "is not required to

discuss every piece of evidence offered regardless of its relation

to the actual grounds of the administrative decision." Lin,

(citing Morales v. INS,

(1st Cir.

2000)). Rather, "[w]hen the BIA's decision is neither inconsistent

with the background evidence nor gives reason to believe the BIA

was unaware of it, we have no reason to doubt that the agency

considered the evidence."

There is no indication in the BIA's denial of Charles'

motion to reopen sua sponte that it was unaware of the evidence

that Charles submitted with his motion. Charles brandishes a

footnote in which the Board deemed whether he had two or three

children "not of particular relevance," to his motion to reopen

sua sponte. With that footnote, he argues, the "BIA . . . declared

its total indifference to the evidence." In context though, the

footnote refers to discrepancies in the record over the total

number of Charles' children.2

Elsewhere in the denial, the BIA makes clear it was aware

that A.C.'s birth was the basis for Charles' third motion. For

example, it states that "respondent's motion is based on the birth

2 These discrepancies apparently stem from the fact that Charles' name did not appear on the birth certificate of one of his children born before A.C.

- 8 - of his child," and implies that "the most recent child" is an

"equit[y] acquired after the entry of a final order." So even

though the BIA did not discuss A.C.'s medical condition, there is

no reason to doubt -- at least in the context of addressing a

motion to reopen sua sponte -- that it was aware of the background

evidence Charles had submitted. As a result, we cannot find that

the Board failed to consider the evidence in the record.

B.

Charles additionally contends that the BIA erred in

denying his motion by "arbitrarily depart[ing] from its prior

practices." He points to three unpublished decisions in which the

Board granted motions to reopen or remand submitted by petitioners

with medically fragile children. But Charles cites no law

establishing that by granting reopening in one case, the Board

limits its discretion to deny relief in all similar (albeit not

identical) cases. Moreover, "unpublished BIA decisions carry no

precedential value." Tulung v. Garland,

(1st

Cir. 2024). This is especially true when, as here, the unpublished

decisions do not purport to be a representative sample. Id.; see

also Djokro v. Garland,

(1st Cir. 2024) (noting

that a sample of unpublished BIA decisions was not representative

when it contained no cases in which the BIA denied the petitioner's

requested relief). We cannot conclude that the BIA committed legal

- 9 - error by coming to a different conclusion than it did in the three

unpublished decisions Charles cites.

III.

For the foregoing reasons, Charles has not shown that

the BIA committed reviewable error in denying his motion to reopen

sua sponte. We therefore dismiss his challenge to that denial.

- 10 -