United States Court of Appeals For the Eighth Circuit ___________________________ No. 20-2316 ___________________________ Deqa Mohamed Yusuf lllllllllllllllllllllPetitioner v. Merrick B. Garland, Attorney General of the United States lllllllllllllllllllllRespondent ____________ Petition for Review of an Order of the Board of Immigration Appeals ____________ Submitted: April 15, 2021 Filed: August 9, 2021 ____________ Before KELLY, GRASZ, and KOBES, Circuit Judges. ____________ 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 second- degree 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. -2- 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, …
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