Fofana v. Garland

Appellate Case: 22-9509 Document: 010110793946 Date Filed: 01/06/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT January 6, 2023 _________________________________ Christopher M. Wolpert Clerk of Court ALY ISSAC FOFANA, Petitioner, v. No. 22-9509 (Petition for Review) MERRICK B. GARLAND, United States Attorney General, Respondent. _________________________________ ORDER AND JUDGMENT* _________________________________ Before BACHARACH, BALDOCK, and CARSON, Circuit Judges. _________________________________ Aly Issac Fofana, a native and citizen of Cote d’Ivoire (Ivory 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 appellate record, this panel has determined unanimously that oral argument would not materially 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 22-9509 Document: 010110793946 Date Filed: 01/06/2023 Page: 2 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 withdrew his asylum application. However, the IJ determined that the asylum application was frivolous and thus barred him from receiving any benefits under the Immigration and Nationality Act. See 8 U.S.C. § 1158(d)(6). The IJ therefore denied Mr. Fofana’s application 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 Section 1208.20(f) sets forth four conditions that, if met, preclude the agency from finding a withdrawn asylum application frivolous: (1) The alien wholly disclaims the application and withdraws it with prejudice; (2) The alien is eligible for and agrees to accept voluntary departure for a period of no more than 30 days pursuant to section 240B(a) of the [Immigration and Nationality] Act; (3) The alien withdraws any and all other applications for relief or protection with prejudice; and (4) The alien waives his right to appeal and any rights to file, for any reason, a motion to reopen or reconsider. The government opposed the motion, stating 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). 2 Appellate Case: 22-9509 Document: 010110793946 Date Filed: 01/06/2023 Page: 3 Mr. Fofana then requested that the BIA hold the proceeding in abeyance pending the resolution of Pangea Legal Services. …

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