Malu v. U.S. Attorney Gen., 13–10409.

• Citation: 764 F.3d 1282
• Decision Date: 19 August 2014
• Docket Number: No. 13–10409.,13–10409.
• Parties: Biuma Claudine MALU, a.k.a. Bima Claudien Malu, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

764 F.3d 1282

Biuma Claudine MALU, a.k.a. Bima Claudien Malu, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 13–10409.

United States Court of Appeals, Eleventh Circuit.

Aug. 19, 2014.

Peter Douglas Keisler, Sidley Austin, LLP, Washington, DC, Claudia Valenzuela Rivas, Keren Zwick, Chicago, IL, for Petitioner.

David V. Bernal, Paul Fiorino, Tracey N. McDonald, Krystal Samuels, U.S. Department of Justice, Washington, DC, Alfie Owens, DHS/Ice Office of Chief Counsel, Atlanta, GA, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals. Agency No. A200–278–578.

Before TJOFLAT and PRYOR, Circuit Judges, and SCOLA,^* District Judge.

PRYOR, Circuit Judge:

This petition for review presents an issue about exhaustion of remedies that has divided our sister circuits: whether an alien must contest her status as an aggravated felon in an expedited removal proceeding before raising that argument before a federal court of appeals. Biuma Malu argues that she should not have been subject to expedited removal proceedings because she did not commit an “aggravated felony,” 8 U.S.C. § 1101(a)(43). Malu also contests the denial of her application for withholding of removal and protection under the Convention Against Torture. She contends that the Board of Immigration Appeals erred when it denied her application. That application alleged that, if she were to return to the Democratic Republic of Congo, she would suffer persecution and torture as a result of her relationship with her uncle and on account of her sexual orientation. Because we conclude that Malu failed to exhaust her argument that she did not commit an aggravated felony, id. § 1252(d)(1), and that the Board committed no reversible errors, we deny her petition for review.

I. BACKGROUND

Malu was born in Kinshasa, Democratic Republic of Congo, and lived there for more than two decades before she fled to the United States in November 2000. When Malu was 11 years old, her parents sold her to her uncle in exchange for a bride price. According to Malu, her uncle, a high-ranking officer in the Congolese military, raped her, impregnated her, put her head in the toilet, urinated on her, burned her with cigarettes, stabbed her, and pierced her with a screwdriver. By age 12, Malu had aborted three pregnancies. When she became pregnant a fourth time at age 12, her doctor instructed her to keep the baby because she would die if she had another abortion. According to Malu, she miscarried the fourth child during a visit to her parents' home when a group of rebel soldiers invaded the home, killed two of her brothers and two of her sisters, beat her father, and raped Malu and her mother.

Malu escaped the Congo in 2000 when her uncle left her with her parents so that Malu could be circumcised, a procedure also commonly known as female genital mutilation. From the Congo, Malu traveled by boat and by car to Gabon, then Cameroon, and finally to Nigeria. From Nigeria, she traveled by ship to Canada and entered the country using a Nigerian passport. She crossed into the United States in the trunk of the car of her smuggler's cousin. She settled in Georgia, near Atlanta.

When Malu first came to the United States, she married a man, but the two later separated. Malu now identifies as a lesbian and dresses as a man. In 2005, she met her partner, April Milliner, at church. They lived together with Milliner's two twin daughters. Together, they managed a car wash.

While in the United States, Malu committed two crimes in violation of Georgia law. In 2009, the state charged her with cruelty to children after arguing with Milliner in front of the twin girls. And in 2011, the state charged her with simple battery. The Department of Homeland Security classified her conviction for simple battery as an aggravated felony, id. § 1101(a)(43)(F), and initiated expedited removal proceedings, id. § 1228.

The Department served Malu with a notice of intent to issue a final administrative removal order, which served as the charging document for her removal, 8 C.F.R. § 1238.1(b)(2). The notice of intent allowed Malu to contest her removability. The notice stated that Malu “must respond to the ... charges in writing ... within 10 calendar days” and that her response could “rebut the charges,” “request an opportunity to review the government's evidence,” “admit deportability,” “designate the country to which [she chose] to be removed,” and seek withholding of removal or protection under the Convention Against Torture. Malu responded to the notice of intent by checking a box requesting withholding of removal because she feared persecution, but she failed to contest the classification of her crime as an aggravated felony. The Department issued the removal order on September 28, 2011.

After issuing the removal order, an immigration officer conducted a reasonable fear interview and concluded that Malu expressed reasonable fear of persecution and torture if she were to return to the Congo. The officer concluded that Malu suffered past persecution and had a reasonable fear of future persecution on account of her membership in a particular social group: Congolese women viewed as property by virtue of their position as wives. The officer further concluded that Malu established a reasonable fear of torture because she is a lesbian. The officer referred Malu's case to an immigration judge to decide whether Malu was entitled to withholding of removal or protection under the Convention Against Torture.

Malu appeared pro se before the immigration judge, who denied her application. Both she and Milliner testified. She also submitted evidence about Congolese society and government, in addition to letters authored by Malu and her friends explaining Malu's past and her role in her Atlanta community. The immigration judge discredited Malu's testimony that she was a Congolese national. The immigration judge also ruled that, even if she could prove her nationality, she failed to corroborate her allegation of past persecution with a reasonably obtainable medical evaluation of her scars, evidence establishing the identity of her uncle, and evidence substantiating her family's horrific encounter with the rebel soldiers. The immigration judge also found that Malu would not suffer future persecution in the Congo on account of her sexual orientation.

Malu appealed to the Board of Immigration Appeals, which dismissed her appeal. The Board agreed with the immigration judge that Malu failed to corroborate her allegations of past persecution and could not establish future persecution. But the Board refused to adopt two conclusions of the immigration judge: the Board did not adopt the immigration judge's rejection of Malu's purported nationality and did not adopt the immigration judge's conclusion that the Department rebutted a presumption that Malu would suffer future persecution. The Board explained that these determinations by the immigration judge, even if in error, were not necessary to the disposition of Malu's case.

II. STANDARD OF REVIEW

We review issues of jurisdiction and issues of law de novo. Amaya–Artunduaga v. U.S. Att'y Gen., 463 F.3d 1247, 1250 (11th Cir.2006); De Sandoval v. U.S. Att'y Gen., 440 F.3d 1276, 1278 (11th Cir.2006). We review only the decision of the Board of Immigration Appeals, except to the extent that the Board “expressly adopts the [immigration judge's] opinion.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.2001).

III. DISCUSSION

Malu presents three arguments to our Court. She first argues that the Department incorrectly classified her conviction for battery as an aggravated felony. She then asks us to overturn certain factual findings by the immigration judge and the decision by the Board that she would not be persecuted or tortured if she were to return to the Congo. Finally, she contends that the Board committed errors of law when it denied her application.

We divide our discussion in five parts. First, we conclude that we are powerless to consider Malu's argument that her conviction for simple battery does not qualify as an aggravated felony because she failed to contest the only ground for her removal before the Department. Second, we explain that we will not review alleged errors by the immigration judge that the Board did not expressly adopt. Third, we explain that the REAL ID Act bars us from considering issues of fact raised by Malu, a criminal alien. Fourth, we conclude that the Board committed no legal error when it rejected Malu's application for withholding of removal. And fifth, we conclude that the Board committed no legal error when it rejected Malu's application for protection under the Convention Against Torture.

A. We Lack Jurisdiction to Consider Malu's Argument that She Is Not an Aggravated Felon Because Malu Failed to Exhaust that Argument.

For the first time, Malu contests the basis for the expedited removal proceedings initiated against her. She argues that she should not have been subjected to expedited removal proceedings because her prior conviction for simple battery, Ga.Code § 16–5–23(a)(1), does not qualify as an “aggravated felony,” 8 U.S.C. § 1101(a)(43)(F). Malu contends that the decision of the Supreme Court in Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), abrogated our prior precedent, which classified simple battery as a violent felony.

The Attorney General urges us not to consider this argument on the ground that Malu failed to exhaust it when she declined to contest the notice of intent, see8 U.S.C. § 1252(d)(1), but Malu asks us to ignore her failure to exhaust for three reasons. First, she contends that there was no available remedy when she received the notice of intent because binding Circuit precedent held that her conviction for simple battery was an aggravated felony. Second, she contends that the law does not require that she exhaust specific issues in the earlier proceedings,...