Hanna v. Holder

• Decision Date: 07 March 2014
• Docket Number: No. 12–4272.,12–4272.
• Citation: 740 F.3d 379
• Parties: Nadim Shakouri HANNA, Petitioner, v. Eric H. HOLDER, Jr., Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

740 F.3d 379

Nadim Shakouri HANNA, Petitioner,

v.Eric H. HOLDER, Jr., Respondent.

No. 12–4272.

United States Court of Appeals,Sixth Circuit.

Argued: Oct. 9, 2013.

Decided and Filed: Jan. 17, 2014.

Rehearing Denied March 7, 2014.

ARGUED:Faten Tina Shuker, Law Offices of Faten Tina Shuker, Farmington Hills, Michigan, for Petitioner. James E. Grimes, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF:Faten Tina Shuker, Law Offices of Faten Tina Shuker, Farmington Hills, Michigan, Russell Reid Abrutyn, Marshal E. Hyman & Assoc., PC, Troy, Michigan, for Petitioner. James E. Grimes, United States Department of Justice, Washington, D.C., for Respondent.

Before: MERRITT, GIBBONS, and McKEAGUE, Circuit Judges.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Petitioner-appellant Nadim Shakouri Hanna petitions for review of an order of the Board of Immigration Appeals (“BIA”). Hanna was convicted of felonious assault under Mich. Comp. Laws § 750.82 and conceded removability through his first counsel. Upon threat of removal from the United States, Hanna applied for asylum and withholding of removal under the Immigration and Nationality Act (“INA”) and under the Convention Against Torture (“CAT”). The Immigration Judge (“IJ”) ordered Hanna removed and denied his applications for withholding of removal, and the BIA adopted and affirmed the IJ's decision. The BIA then reopened Hanna's asylum application based on changed conditions for Chaldean Christians in Iraq. On remand, Hanna, represented by new counsel, contested his removability and pursued claims for asylum and withholding of removal. The IJ granted Hanna's application for withholding of removal but held Hanna ineligible for asylum because he firmly resettled in Canada before entering the United States. The IJ also held that Hanna was bound to his first attorney's concession of removability. The BIA affirmed.On appeal to this Court, Hanna maintains that he is not removable and that the firm resettlement bar does not foreclose his asylum application. For the reasons set forth below, we grant Hanna's petition for review, reverse the BIA's holding that Hanna's admission is binding, and relieve Hanna of his attorney's concession of removability. Because the BIA's determination that Hanna is removable is predicated on this concession, we reverse the finding that Hanna is removable. We remand to the BIA to determine, consistent with this opinion, whether Hanna's specific offense under Mich. Comp. Laws § 750.82 is a crime involving moral turpitude. Separately, we affirm the BIA's determination that Hanna is ineligible for asylum.

I.

Hanna, born on April 10, 1979, is a native and citizen of Iraq. Hanna and his family are Chaldean Christians. Hanna left Iraq in February 1990 with his father, mother, four sisters, and one brother. The family initially traveled to Greece, where they remained until December 1991. From there, they traveled onward to Canada and entered with “landed immigrant” status. As landed immigrants, Hanna and his family were considered permanent residents of Canada with permission to live and work. In 1993, Hanna's parents obtained permanent resident status in the United States through a petition filed by Hanna's sister, who previously had entered and obtained citizenship. In May 1993, Hanna entered the United States as a nonimmigrant visitor. Hanna's parents petitioned for permanent resident status for their remaining children, including Hanna. While Hanna's petition was pending, he resided in Ontario, Canada, attending Catholic middle school there. Hanna also resided with his parents in the United States for significant amounts of time, sometimes the majority of the year, as a nonimmigrant visitor. By traveling to and from Canada and overstaying the visitor's visas he received upon entering the United States, Hanna attended high school in the United States, worked at the family business, and obtained a Michigan driver's license. During this time, Hanna retained his landed immigrant status in Canada. Hanna was admitted as a lawful permanent resident to the United States on November 17, 1998. Subsequently, Hanna's Canadian permanent resident status expired. See Immigration and Refugee Protection Act of Canada, S.C.2001, c. 27, §§ 28, 41(b) (Can.).

On November 28, 1996, Hanna, then seventeen years old, was cruising in a parking lot in Southfield, Michigan, while waiting for friends who were attending a nearby party. The attendant valet, Johny Asmer, told Hanna to stop cruising. Ensuing words were exchanged, which escalated into shouting. While exiting the parking lot in his car, Hanna, holding an opened, three-inch, folding knife, threatened to cut Asmer. Hanna was arrested as a result of this incident, but the charges were twice dropped after Asmer failed to appear in court. In 1999, however, the State of Michigan reinstated the charges from the parking lot altercation. Hanna was charged with felonious assault, in violation of Mich. Comp. Laws § 750.82, and driving with a suspended license. On March 31, 2000, the Sixth Judicial Circuit Court for Oakland County, Michigan, a Michigan trial court, found that Hanna committed these offenses after his seventeenth but before his twenty-first birthday. The Michigan court assigned Hanna to Youthful Trainee Status and sentenced him to thirty days in the county jail and two years of probation. As result of the court order, the government commenced removal proceedings against Hanna by filing of a Notice to Appear (“NTA”), dated January 8, 2002. The government alleged in the NTA that Hanna was convicted on March 31, 2000, for the offense of felonious assault, committed on or about November 28, 1996, and, for that offense, a sentence of one year or longer may be imposed. The government subsequently filed a Form I–261, specifically charging Hanna with an admission date of May 1993 as a nonimmigrant visitor. The government charged Hanna as subject to removal, having been convicted of a crime involving moral turpitude (“CIMT”) within five years after admission and for which a sentence of one year or longer may be imposed. See8 U.S.C. § 1227(a)(2)(A)(i).

Removal proceedings were conducted on April 18, 2003, July 25, 2003, and November 9, 2005, at the Immigration Court in Detroit. Hanna was initially represented by his attorney, Nasir Daman. On April 18, 2003, the Michigan court order was admitted into evidence as a record of Hanna's conviction for felonious assault. Then, on July 25, 2003, Hanna, through his counsel, admitted the charges in the NTA, including the factual allegation that Hanna was convicted of the offense of felonious assault. Hanna, through his counsel, also conceded his removability under 8 U.S.C. § 1227(a)(2)(A)(i). The IJ designated Iraq as the country of removal. Further, at the July 25 hearing, Hanna filed I–589 applications for asylum and for withholding of removal under the INA and protection under the CAT. Hanna's withholding application was supported by his claim that being a Chaldean Christian placed him at risk of harm in Iraq. At the November 9 hearing, Hanna conceded ineligibility for asylum resulting from his failure to file an asylum application within one year of entering the United States. See8 U.S.C. § 1158(a)(2)(B). Hanna and his father then testified in support of his application for withholding of removal, averring that Hanna would be subject to grave danger if removed to Iraq. The IJ denied Hanna's applications for relief and ordered Hanna removed to Iraq, with an alternative to Canada, on the charge contained in the NTA.

Hanna appealed the IJ's denial of asylum and withholding of removal. On May 30, 2007, the BIA adopted and affirmed the IJ's decision and declined to remand. Hanna subsequently moved to reopen removal proceedings on April 28, 2008, contending entitlement to reopening under the Refugee Crisis in Iraq Act of 2007, Pub.L. No. 110–181, tit. XII, submit. C, § 1247, 122 Stat. 3 (2008) (codified at 8 U.S.C. § 1157), because conditions in Iraq had deteriorated for Chaldean Christians. The BIA granted this motion on October 30, 2008, finding Hanna produced previously unavailable evidence of significantly worsening conditions in Iraq for its minority Christian populations. The BIA reopened to allow Hanna to apply for asylum based on his status as a Chaldean Christian and remanded to the IJ. Hanna reapplied for asylum on May 3, 2010.

After this point, Hanna was represented by Faten Tina Shuker. Continued removal proceedings were conducted on January 8, 2009, May 3, 2010, and October 26, 2010. On remand, Hanna presented several hundred pages of documentary evidence, and Hanna and his father testified in support of his applications. The hearings focused on three issues: whether Hanna's conviction was for a particularly serious crime sufficient to preclude relief; whether Hanna merited asylum as a matter of discretion; and whether Hanna firmly resettled in Canada before immigrating to the United States. Hanna also raised the issue of his removability.

The IJ entered her decision on October 26, 2010. The IJ found Hanna and his father credible with respect to a well-founded fear of Hanna's future persecution as a Chaldean Christian and held that Hanna's offense of conviction was not a particularly serious crime. The IJ accordingly granted Hanna's application for withholding of removal under 8 U.S.C. § 1231(b)(3) and held Hanna's claim for protection under the CAT moot. With respect to asylum, the IJ noted that an alien who “firmly resettled” in another country before arriving in the United States is not eligible for asylum. See8 U.S.C. § 1158(b)(2)(A)(vi); 8 C.F.R. § 1208.13(c)(2)(ii). The IJ held that the government proffered sufficient evidence showing Hanna “firmly resettled” in Canada, that Hanna failed to provide evidence sufficient to rebut this contention, and that Hanna is statutorily ineligible for asylum under 8 U.S.C. § 1158(b)(2)(A...