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Twum v. Barr

United States Court of Appeals, First Circuit

July 9, 2019



          Evaristus Nkongchu and African Legal Concierge, PLLC, on brief for petitioner.

          Elizabeth R. Chapman, Trial Attorney, Joseph H. Hunt, Assistant Attorney General, and Russell J.E. Verby, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, on brief for respondent.

          Before Torruella, Stahl, and Thompson, Circuit Judges.


         Petitioner Jennifer Ampofowah Twum, a native and citizen of Ghana, asks us to review an order from the Board of Immigration Appeals ("BIA") denying her motion to reopen removal proceedings. Twum petitioned the BIA to reopen so that she could apply for cancellation of removal under the "special rule" for battered spouses and children, asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). She now alleges that the BIA erred in denying the motion on each of those grounds. After careful review, we conclude that we are without jurisdiction to review the BIA's denial of "special rule" cancellation. With respect to the latter three claims, however, we find it appropriate to grant the petition and remand to the BIA for further proceedings consistent with this opinion.


         Twum entered the United States on a J-2 visa as a nonimmigrant spouse of an exchange visitor on or about August 10, 2001. The "exchange visitor" in question was her then-husband, Clement Asumadu-Baffi, whose arrival proceeded Twum's. According to Twum, she was forced to marry Asumadu-Baffi in Ghana when she was fifteen, and he subjected her to physical, mental, and sexual abuse both in Ghana and after their reunion in the United States. At some point in 2001 or 2002, Twum fled from the marital home in Cleveland, Ohio to Worcester, Massachusetts. She filed for divorce, which was finalized in February 2002. Twum avers that Asumadu-Baffi continued to threaten her after (and because of) their divorce, stating that he would retake her as his wife or kill her if she ever returned to Ghana.

         After moving to Worcester, Twum began a romantic relationship with another Ghanaian, with whom she had two daughters in 2004 and 2007, respectively.[1] She also met and, in June 2007, married Robert Tolson, a United States citizen.

         Twum's divorce from Asumadu-Baffi terminated her nonimmigrant status and, on September 22, 2006, the Department of Homeland Security ("DHS") filed a Notice to Appear (the "Notice") charging Twum with removability for remaining in the United States beyond the term of her visa. Through counsel, Twum admitted all of the factual allegations in the Notice and conceded removability at a hearing held on January 9, 2007. Proceedings were continued from that date until June 12, 2007, at which point Twum appeared with a second counsel. One week later, on June 19, 2007, Twum submitted supplemental pleadings and requested relief in several forms, to wit: withholding of removal, asylum, adjustment of status, protection under the CAT, cancellation of removal, and voluntary departure.

         After her second marriage, Twum sought and received a continuance of the immigration proceedings to await decision on Tolson's then-pending I-130 Petition for Alien Relative to adjust her immigration status based on marriage. In response to that petition, DHS requested documentation evincing Twum's divorce.[2]Neither the couple nor Twum's then-attorney, Ainsworth Jones, responded to DHS's request and, as a result, DHS denied the petition on November 5, 2008. Tolson and Twum refiled the petition shortly thereafter and again sought a continuance; however, the immigration judge ("IJ") denied the motion on February 3, 2009. In the same ruling, the IJ determined that Twum had abandoned her claims for asylum, withholding, and CAT-based relief as of October 16, 2007, had withdrawn her claim for voluntary departure, and could not pursue cancellation of removal based on insufficient time of residency in the United States. As a result, the IJ ordered Twum removed.

         Despite that order, DHS subsequently approved Tolson's second I-130 petition, and Twum moved to reopen the removal proceedings to pursue adjustment of her status. Twum based her motion to reopen both on DHS's approval of the I-130 as well as on claimed ineffective assistance by Jones, her prior attorney. The IJ granted the motion to reopen on April 1, 2010.[3]

         In response to Twum's ineffective assistance of counsel charge against him, Jones provided DHS with evidence[4] that undercut Tolson's second I-130 petition. After review of that submission and further information provided by the couple, DHS concluded that Twum and Tolson failed to demonstrate by clear and convincing evidence that they entered into their marriage in good faith, rather than for an immigration benefit. DHS revoked its previous approval of Twum's I-130 on March 3, 2011, again placing her in jeopardy of deportation due to the loss of the marriage benefit. Following that revocation, on March 30, 2011, the IJ denied Twum's application for adjustment of status and motion to further continue the proceedings, and again ordered her removal to Ghana. Twum appealed to the BIA, which affirmed the IJ's removal order on March 29, 2012.

         The removal order notwithstanding, Twum did not depart the country. At the same time, Twum states that her marriage with Tolson was failing and, in 2015, she filed for divorce. In an affidavit submitted with her present motion to reopen, Twum states that Tolson began leaving home without explanation and using drugs during those absences. During one such absence, she alleges that Tolson was arrested for robbery, after which point he became physically abusive and threatened to kill her on multiple occasions.

         On March 26, 2018, [5] Twum filed a motion to reopen proceedings and stay removal. The impetus for her motion was three-fold, as she sought to apply for cancellation of removal under the special rule for battered spouses of United States citizens under 8 U.S.C. § 1229b(b)(2), asylum and withholding of removal under 8 U.S.C. §§ 1158, 1241(b)(3), and protection under the CAT under 8 C.F.R. §§ 1208.16-1208.18. In support of her application, Twum filed a statement asserting that removal to Ghana would expose both Twum and her two U.S. citizen daughters to "exceptional and extremely unusual hardship." In particular, she pointed to, inter alia, the need to remove her young daughters (then fourteen and eleven years old) from school and into a foreign culture and the purported risk that they will be subject to female genital mutilation ("FGM") and/or face unusual security risks due to their American citizenship.[6] She also filed an affidavit attesting to her fear that she would face severe physical violence from Asumadu-Baffi if she were to return to Ghana.

         The BIA denied the motion to reopen on September 13, 2018. After noting that the motion was untimely, the BIA found that Twum failed to demonstrate her eligibility for an exception to the applicable time limitations. In particular, the BIA concluded that she failed to demonstrate the necessary predicates for either a timeliness waiver or relief under the special rule for battered spouses and, separately, that she did not adequately demonstrate "changed country conditions" that could provide a basis for making an otherwise-belated asylum claim. Finally, the Board declined to exercise its discretionary authority to order sua sponte reopening under 8 C.F.R. § 1003.2(a).

         This timely appeal followed.


         On appeal, Twum contends that the BIA's order denying her motion to reopen erred in two regards. First, she argues that she amply demonstrated her eligibility for a timeliness waiver and relief based on the special rule for battered spouses and that the BIA's decision to the contrary is unsupportable on the record. Second, Twum contends that she made a sufficient demonstration of both "changed country conditions" within Ghana and her substantive entitlement to asylum, ...

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