Bouchikhi v. Holder

• Decision Date: 08 March 2012
• Docket Number: No. 10–60982.,10–60982.
• Citation: 676 F.3d 173
• Parties: Zoubir Al Tilimsani BOUCHIKHI, Petitioner, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

676 F.3d 173

Zoubir Al Tilimsani BOUCHIKHI, Petitioner,

v.Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.

No. 10–60982.

United States Court of Appeals, Fifth Circuit.

March 8, 2012.

Brian Keith Bates, Reina & Bates Immigration & Nationality Law, Houston, TX, for Petitioner.

Jeffrey Lawrence Menkin, Tangerlia Cox, Edward C. Durant, Jessica W. Segall, OIL, U.S. Dept. of Justice, Washington, DC, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before REAVLEY, ELROD and HAYNES, Circuit Judges.

PER CURIAM:

Petitioner Zoubir Al Tilimsani Bouchikhi petitions for review of an order from the Board of Immigration Appeals (BIA) dismissing Bouchikhi's appeal from an Immigration Judge's (IJ) decision pretermitting his application for asylum and denying his application for withholding of removal. We DISMISS Bouchikhi's petition insofar as he challenges certain factual findings that we lack jurisdiction to review. In all other respects, the petition is DENIED.

I. Background

Bouchikhi is a native and citizen of Algeria. He is a Muslim imam. He believes in democratic government, and he disapproves of the present Algerian regime because of its failure to permit democracy. As a moderate Muslim, Bouchikhi opposes the mistreatment of non–Muslims and the use of violence to establish an Islamist state.

After entering the United States in 1997 on a non-immigrant student visa, Bouchikhi received permission to remain as a special non-immigrant religious worker. That status was set to expire in December 2004. In May 2003 the Department of Homeland Security (DHS) denied Bouchikhi's petition to renew his religious worker classification, but in July 2003 DHS inadvertently granted a second petition. Bouchikhi applied for adjustment to immigrant status in October 2003. And in October 2005 he was granted advance parole, permitting him to travel outside of the United States without prejudicing his pending application for adjustment of status. He left the United States in January 2006 and returned in February 2006. DHS denied Bouchikhi's application for adjustment of status on March 9, 2007. DHS also revoked his non-immigrant religious worker status on March 9, 2007. Bouchikhi moved to reopen and reconsider the revocation but that motion was denied in November 2008.

In December 2008 Bouchikhi was served with a Notice to Appear, charging him with being removable as an alien not in possession of valid entry documents. Bouchikhi sought various forms of relief, including asylum and withholding of removal, for which he applied in April 2009. The IJ considered those applications at a hearing in April 2009.

Bouchikhi contended that the Algerian state oppresses any outspoken advocate of democracy or critic of its conduct. He also contended that various opposition groups in Algeria hold extreme religious views, and that they threaten violence against moderate religious leaders like himself. Bouchikhi testified that before he moved to the United States he lived for seven years in Malaysia. After moving to the United States he returned to Algeria to visit his mother. Most of his family still resides in Algeria, including his parents and seven of his ten siblings. Bouchikhi attempted to present expert testimony of Dr. Shaul Gabbay, a professor at the University of Denver in the School of International Studies. Bouchikhi called Gabbay as an expert on religious extremism in the Muslim world, but the IJ did not permit Gabbay to testify because he is not an expert on Algeria.

The IJ found that Bouchikhi had failed to meet his burdens of proof with respect to his requests for relief from removal, including his asylum application and his application for withholding of removal. The IJ also found that Bouchikhi's asylum application was untimely. Under 8 U.S.C. § 1158(a)(2)(B), an alien must file his asylum application “within 1 year after the date of the alien's arrival in the United States.” The IJ found that Bouchikhi's last arrival was in February 2006. The IJ found that Bouchikhi had failed to establish any extraordinary circumstance that would justify relaxing the one-year deadline under 8 U.S.C. § 1158(a)(2)(D).

The BIA dismissed Bouchikhi's appeal with a brief opinion in which the BIA explicitly affirmed and adopted the IJ's decision. Bouchikhi timely filed a petition for review in this court.

II. Jurisdiction

The court has jurisdiction to review constitutional claims or questions of law raised in a timely petition challenging an order of removal. 8 U.S.C. § 1252(a)(2)(D). We have authority to review only an order of the BIA, but our task is effectively to review the IJ's decision when the BIA has explicitly adopted it. See Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir.2007). Generally, we have jurisdiction to review an IJ's determinations of fact under a substantial evidence standard. Zhang v. Gonzales, 432 F.3d 339, 343–44 (5th Cir.2005). The IJ's findings of fact are conclusive “unless any reasonable adjudicator would be compelled to conclude to the contrary ....” 8 U.S.C. § 1252(b)(4)(B). But we lack jurisdiction to review findings of fact bearing on determinations of the timeliness of an asylum application. Zhu, 493 F.3d at 594–95.

III. Discussion

A. Bouchikhi's Arrival

As noted above, 8 U.S.C. § 1158(a)(2)(B) requires an alien to file his asylum application “within 1 year after the date of the alien's arrival in the United States.” The Attorney General's implementing regulations require that “[t]he 1–year period shall be calculated from the date of the alien's last arrival in the United States.” 8 C.F.R. § 1208.4(a)(2)(ii). Bouchikhi's first argument presents a question of law regarding the meaning of “arrive” as it is used in these provisions. The parties agree that Bouchikhi was paroled when he returned to the United States in February 2006, and that he was an “arriving alien” from then until his April 2009 asylum application. Bouchikhi argues that his last “arrival” in the United States was a continuing event that began when he became an “arriving alien” and continued as long as he retained that status. He was therefore “still legally ‘arriving’ ... years after he got off the plane,” and his “asylum application should [not] be considered as filed more than a year after his ‘arrival.’ ”

When construing statutes and regulations, we begin with the assumption that the words were meant to express their ordinary meaning. INS v. Elias–Zacarias, 502 U.S. 478, 482, 112 S.Ct. 812, 816, 117 L.Ed.2d 38 (1992); S.D. ex rel. Dickson v. Hood, 391 F.3d 581, 595 (5th Cir.2004). In Matter of F–P–R the BIA interpreted “arrival” as it is used in § 1208.4(a)(2)(ii). 24 I & N Dec. 681, 682–83, Int. Dec. 3630, 2008 WL 4817462 (BIA 2008). The BIA rejected the Second Circuit's view¹ that “last arrival” in § 1208.4(a)(2)(ii) does not include arrivals after brief trips out of the United States. Id. “[L]ast arrival,” the BIA explained, “refer[s] to an alien's most recent coming or crossing into the United States after having traveled from somewhere outside the country.” Id. at 683. The BIA relied on the ordinary meaning of “arrive,” which “is defined as ‘to come to a certain point in the course of travel; reach one's destination’ and ‘to come to a place after traveling.’ ” Id. (citing The Random House Dictionary of the English Language 83 (unabridged ed. 1973)). Other authorities confirm that in ordinary usage “arrival” denotes an event that happens at a particular point in time rather than over a duration.²

Bouchikhi's three year stint as an “arriving alien” is no reason to depart from ordinary usage when applying 8 U.S.C. § 1158(a)(2) and 8 C.F.R. § 1208.4(a)(2)(ii). “Arriving alien” is a legal term of art explicitly defined in 8 C.F.R. § 1.2.³ The definition takes in various categories of aliens who are physically present in the United States but for one reason or another are not yet admitted:

Arriving alien means an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of transport. An arriving alien remains an arriving alien even if paroled pursuant to section 212(d)(5) of the Act, and even after any such parole is terminated or revoked. However, an arriving alien who was paroled into the United States before April 1, 1997, or who was paroled into the United States on or after April 1, 1997, pursuant to a grant of advance parole which the alien applied for and obtained in the United States prior to the alien's departure from and return to the United States, will not be treated, solely by reason of that grant of parole, as an arriving alien under section 235(b)(1)(A)(i) of the Act.Some aliens remain in that situation for months or years. But that does not support Bouchikhi's theory that a fictionally prolonged “arriving” is continuously carried on during that time. Section 1.2's definition of “arriving alien” makes plain that applying the term to a person does not attribute any act of “arriving” to him at all. It merely conveys that he belongs to one of the various categories of aliens, none of whom 8 C.F.R. § 1.2 describes in terms of an act of “arriving.” Moreover, Bouchikhi points to nothing indicating that 8 C.F.R. § 1.2's definition of “arriving alien” was intended to interpret or control every other use of “arrive” found in the I.N.A. or its implementing regulations. Notwithstanding his subsequent status as an “arriving alien,” Bouchikhi's “arrival” for purposes of 8 U.S.C. § 1158(a)(2) and 8 C.F.R. § 1208.4(a)(2)(ii) occurred and was complete at the latest on the day in February 2006 that he returned the United States after traveling abroad.⁴

B. Extraordinary Circumstances

Title 8, United States Code, §...