Essel v. Garland, No. 22-2615 (8th Cir. 2023)
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The United States Court of Appeals for the Eighth Circuit denied petitioner Paul Jack Cobby Essel's appeal against an order from the Board of Immigration Appeals (BIA). Essel, a citizen of Ghana, entered the United States on a non-permanent student visa in 2003 and obtained conditional permanent resident status in 2009 through marriage to a U.S. citizen. However, his application for citizenship was denied as the U.S. Citizenship and Immigration Services (USCIS) found that he was not living with his citizen-spouse and had made false statements about his marriage to garner immigration benefits. Consequently, the USCIS charged him with removability, which was upheld by an immigration judge and the BIA. Essel filed two motions to reopen his case in 2019 and 2021, which the BIA denied on the grounds of untimeliness and merit.
In the present case, Essel petitioned the court to review the BIA's decision. He sought to use the BIA's sua sponte authority to reopen his removal proceedings and asked the BIA to apply equitable tolling to reopen his case based on two Supreme Court decisions, Pereira v. Sessions and Niz-Chavez v. Garland. However, the court found that it lacked jurisdiction to review the BIA's refusal to grant sua sponte relief and denied Essel's request for equitable tolling as he had not articulated these arguments as grounds for equitable tolling in his motions to the BIA. Consequently, the court upheld the BIA's decision and denied Essel's petition for review.
Court Description: [Grasz, Author, with Shepherd and Erickson, Circuit Judges] Petition for Review - Immigration. The court lacks jurisdiction to review the Board of Immigration Appeals' refusal to grant sua sponte relief as this is a discretionary matter committed to the Board, and there is no colorable claim that the denial presents a reviewable constitutional claim; the arguments petitioner presents to overturn the Board's decision not to apply equitable tolling to reopen the matter were not presented to the Board and would not be considered for the first time in this petition for review.
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