Jarbough v. Attorney General of U.S.

• Decision Date: 11 April 2007
• Docket Number: No. 06-1081.,06-1081.
• Citation: 483 F.3d 184
• Parties: Adel Fadlala JARBOUGH, Petitioner, v. ATTORNEY GENERAL OF the UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

483 F.3d 184

Adel Fadlala JARBOUGH, Petitioner, v. ATTORNEY GENERAL OF the UNITED STATES.

No. 06-1081.

United States Court of Appeals, Third Circuit.

Submitted pursuant to Third Circuit LAR 34.1(a) Jan. 25, 2007.

Filed April 11, 2007.

Marc J. Reiter, Pittsburgh, PA, Counsel for Petitioner Adel Fadlala Jarbough.

Richard M. Evans, Joan E. Smiley, Genevieve Holm, United States Department of Justice, Office of Immigration Litigation, Washington, DC, Counsel for Respondent Attorney General of the United States.

Before SCIRICA, Chief Judge, FUENTES and CHAGARES, Circuit Judges.

OPINION OF THE COURT

CHAGARES, Circuit Judge.

Adel Jarbough petitions for review of a final order of removal issued by the Board of Immigration Appeals ("BIA"). As explained below, we lack jurisdiction to review Jarbough's claim that extraordinary circumstances excused the late filing of his asylum application. In addition, substantial evidence supports the BIA's denial of withholding of removal, and the Immigration Judge's ("IJ") rulings and conduct did not violate the Due Process Clause. Accordingly, we will dismiss the petition for review in part, and deny it in part.

I.

Mr. Jarbough is a native and citizen of Syria. In March 2001, he entered the United States as a non-immigrant authorized to remain until June of that year. Jarbough overstayed his visa, and in December 2002 he filed an application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT").¹ Jarbough claimed to have suffered persecution in Syria on account of his being a Druze,² and on account of a pro-Israeli political opinion imputed to him by the Syrian government.

Jarbough conceded that he filed his asylum application more than one year after his arrival in the United States. However, he claimed that extraordinary circumstances excused the delay. See 8 U.S.C. § 1158(a)(2)(B), (D). Specifically, in May 2001, Jarbough consulted with an attorney (not counsel in the present appeal). Jarbough described his troubles in Syria, and the attorney opined that Jarbough had little hope of winning asylum. When the meeting ended, the men went their separate ways. Critically, though, the attorney neglected to mention the one-year deadline for filing an asylum application. According to Jarbough, this negligent omission was an extraordinary circumstance capable of tolling the one-year deadline.

As to the merits, Jarbough styled his application as a "mixed motives" case. See Singh v. Gonzales, 406 F.3d 191, 197 (3d Cir.2005). He claimed that the Syrian government's decision to persecute him resulted from a number of factors. First and foremost, he was a Druze. Jarbough claimed that the Syrian government has traditionally suspected the Druze of collaborating with the Israelis. Second, Jarbough had served in the Syrian military and worked as a civilian employee of the Ministry of Defense. Third, he had been in communication with his uncle, a resident of the Israeli-controlled Golan Heights. In early 2001, Jarbough's uncle visited his family in Syria for the first time since the 1967 Six-Day War. Jarbough and his uncle subsequently spent two days together. This apparently raised the suspicions of the Syrian intelligence authorities. Jarbough claimed that these authorities believed he was an Israeli spy and, for that, they persecuted him.

A few weeks after the visit from Jarbough's uncle, Syrian intelligence officers seized Jarbough from his home and took him to their facility. The officers placed Jarbough in an interrogation room that contained wires and electrical cables. They told Jarbough, "[I]f you don't tell the truth . . . you will have [the] feel of it." Appendix ("App.") 192. Although the officers did not use the electrical devices, they repeatedly screamed at Jarbough and jabbed their fingers and fists into his shoulder. After four hours of interrogation, they released him.

Ten days later, the authorities seized Jarbough again. This time he remained in their custody for two days. Once again, the officers cursed and screamed, yelling, "You are a spy, all of you are." App. 210. In the interrogation room, Jarbough saw electric-shock machines that looked similar to torture devices he had seen on television. The officers did not use the devices, but they did administer a series of kicks, shoves, and pushes. After two days, the officers released Jarbough and told him to remain in his house. Jarbough had some bruises, but he did not go to a doctor because his injuries "did not really require immediate medical intervention." App. 258. Shortly thereafter, he left for the United States.

Jarbough recounted these tribulations at an August 2004 hearing before an IJ. At the beginning of the hearing, Jarbough's attorney asked for a continuance. He wanted a delay to secure the expert testimony of Professor Joshua Landis, a scholar well-versed in the historical plight of the Syrian Druze. The IJ responded that she was "finishing th[e] case today." App. 137. Her next available hearing date was in April 2005, and she viewed an eight-month delay as unacceptable. Rebuffed, Jarbough's attorney instead submitted an article by Professor Landis. See Joshua Landis, Shishakli and the Druzes: Integration and Intransigence, in The Syrian Land: Processes of Integration and Fragmentation 369 (T. Philipp & B. Schaebler eds., 1998), reprinted in App. 515-37. The IJ stated that she would "certainly take note of th[e] article." App. 142.

Jarbough's attorney also sought to introduce the testimony of Norris El-Attrache. Like Jarbough, El-Attrache is a Syrian Druze. He was prepared to describe the Syrian government's persecution of his family. According to counsel, this evidence would show "that people similarly situated to [Jarbough] have disappeared and/or are being killed based on the fact that they are [D]ruze." App. 136. The IJ refused to allow it. She reasoned that El-Attrache's testimony would effectively require her to "entertain . . . 2 asylum applications." App. 136. Nonetheless, Jarbough's counsel did submit an affidavit from El-Attrache. In it, El-Attrache spoke generally about the Druze religion, discussed the persecution of the Druze by the Syrian government, and stated that "on Feb[ruary] 4, 1954, [his] father was killed in battle with the Syrian army." App. 682-83.

With these preliminary considerations disposed of, Jarbough took the stand and testified. During the hearing, the IJ repeatedly sustained objections that Jarbough's counsel was asking leading questions. At one point, there occurred a rather testy exchange between the IJ and Jarbough's attorney. Jarbough was describing the cables he had seen in the intelligence facility's interrogation room. Counsel asked, "What kind of cables were these?" App. 193. At this point, the Department of Homeland Security's attorney objected on relevance grounds. Jarbough's attorney responded, "They're electrical cables." Id. Moments later, Jarbough parroted, "Electrical cables." Id. This angered the IJ. She scolded Jarbough's attorney and admonished him to "[s]top giving the answers." App. 194-98.

Jarbough's testimony continued. The next day, the IJ heard closing arguments and rendered an oral decision. She concluded that no extraordinary circumstances excused Jarbough's failure to comply with the one-year deadline. In the alternative, she found that Jarbough had not established eligibility for asylum. The IJ also found him ineligible for withholding of removal and CAT relief.

On appeal, the BIA affirmed. It adopted most of the IJ's findings and added a few thoughts of its own. Specifically, it explained in greater detail why the omission by the attorney Jarbough visited did not constitute an extraordinary circumstance.

This petition for review followed. Jarbough challenges the BIA's rejection of his asylum application as untimely, its denial of withholding of removal, and he also contends that several of the IJ's rulings as well as her conduct violated the Due Process Clause.

II.

We consider first Jarbough's claim that extraordinary circumstances excused the late filing of his asylum application. Under 8 U.S.C. § 1158(a)(2)(B), an alien must file an asylum application within one year of his arrival in the United States. A late-filed application may be excused if the alien demonstrates "to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing an application. . . ." 8 U.S.C. § 1158(a)(2)(D). Immediately after that provision, paragraph (a)(3) states that "[n]o court shall have jurisdiction to review any determination of the Attorney General under paragraph (2)." 8 U.S.C. § 1158(a)(3). Accordingly, in Tarrawally v. Ashcroft, 338 F.3d 180 (3d Cir.2003), we held that § 1158(a)(3) stripped us of jurisdiction to review a "determination that an asylum petition was not filed within the one year limitations period, and that such period was not tolled by extraordinary circumstances." Id. at 185.

After Tarrawally, however, Congress enacted the REAL ID Act of 2005. Section 106 of the REAL ID Act restored our jurisdiction to review "constitutional claims or questions of law raised upon a petition for review. . . ." REAL ID Act of 2005 § 106(a)(1)(A)(iii), 8 U.S.C. § 1252(a)(2)(D).³

The jurisdictional grant of § 1252(a)(2)(D) is narrowly circumscribed. See Saloum v. U.S. Citizenship & Immig. Servs., 437 F.3d 238, 242-43 (2d Cir.2006); Higuit v. Gonzales, 433 F.3d 417, 419 (4th Cir.2006). For instance, it is clear that courts of appeals continue to have no jurisdiction to review discretionary and factual determinations presented in petitions for review. See, e.g., Diallo v. Gonzales, 447 F.3d 1274, 1281 (10th Cir.2006); Jean v. Gonzales, 435 F.3d 475, 480 (4th Cir.2006); Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir.2006) ("Despite the special treatment...